- 


GIFT  OF 


'      j  A-gft- ^ . 

NAVAL  COURTS 

AND 

BOARDS 


WASHINGTON 

GOVERNMENT  PRINTING  OFFICE 
1917 


>  I 


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' 


NAVY  DEPARTMENT, 

Washington,  August  18, 1917. 

•'  Naval  Courts  and  Boards "  is  approved  and  published  for  the 
guidance  of  the  naval  service.  It  supersedes  "Forms  of  Procedure 
for  Courts  and  Boards  in  the  Navy  and  Marine  Corps,  1910,"  and 
the  regulations  and  instructions  applying  exclusively  to  naval  courts 
and  boards  heretofore  contained  in  the  Navy  Regulations. 

JOSEPHUS  DANIELS, 
Secretary  of  the  Navy. 
in 


3G5872 


RdHAOfl 


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PART  I. 

INSTRUCTIONS  FOR  COURTS 
AND  BOARDS  IN  THE  NAVY. 


I  TM/'I 


I. 


THE  AUTHORITY  AND  THE  SOURCES 
OF  NAVAL  LAW. 


T  dtf.  JL  3HT 

U  J/ 


' 

•  •  .  .   •  -  . 
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THE  AUTHORITY  AND  THE  SOURCES  OF  NAVAL  LAW. 

1.  Military  jurisdiction,  forms  of, — A  concurring  opinion  in  a  cele- 
brated case  decided  by  the  Supreme  Court   (Ex  parte  Milligan,  4 
Wall.,  2)   recognized  under  the  Constitution  of  the  United  States 
three  distinct  forms  of  military  jurisdiction — namely,  the  jurisdic- 
tion coming  under: 

(1)  Military  law,  which  was  held  to  be  that  which  is  found  in  acts 
of  Congress  prescribing  rules  and  articles  of  war,  or  otherwise  pro- 
viding for  the  government  of  the  national  forces.     It  is  exercised 
both  in  peace  and  war. 

(2)  Military  government,  which  was  described  as  the  exercise  of 
military  jurisdiction  by  a  military  commander,  under  the  direction 
of  the  President,  with  the  express  or  implied  sanction  of  Congress, 
superseding,  as  far  as  may  be  deemed  expedient,  the  local  law.    This 
form  of  military  jurisdiction  ordinarily  exists  only  in  time  of  war, 
and  is  exercised  only  without  the  boundaries  of  the  United  States 
or  within  States  or  districts  occupied  by  rebels  treated  as  belligerents. 

(3)  Martial  law,  which  was  distinguished  as  that  branch  which  is 
called  into  action  by  Congress,  or  temporarily  by  the  President  when 
the  action  of  Congress  can  not  be  invited,  in  the  case  of  justifying 
or  excusing  peril,  in  time  of  insurrection  or  invasion,  or  of  civil  or 
foreign  war,  within  districts  or  localities  whose  ordinary  law  no 
longer  adequately  secures  public  safety  and  private  rights. 

2,  Military  law. — With  the  exception  of  Chapter  II  (which  has  to 
do  with  the  second  and  third  of  the  above-named  forms  of  military 
jurisdiction)   the  subject  matter  of  "Naval  Courts  and   Boards" 
comes  under  the  first  form — namely,  military  law.  rfiro' 

Military  law  may  be  defined  as  "  the  body  of  rules  and  ordinances 
prescribed  by  competent  authority  for  the  government  of  the  mili- 
tary state  considered  as  a  distinct  community."  (20  A.  &  E.  Ency. 
Law,  618.)  It  is  a  fundamental  branch  of  the  national  law,  has 
the  same  foundation;  and  its  rules,  its  extent,  and  its  limitations 
are  as  well  defined  as  any  other  branch  of  the  law  administered 
by  the  Federal  Government.  While  military  law  was  in  existence 
long  before  the  adoption  of  the  Constitution  of  the  United  States, 
yet  as  our  law,  both  public  and  private,  may  be  considered  as  dating 
from  the  time  of  this  instrument,  it  is  customary  to  look  to  the  Con- 
stitution as  the  source  of  our  military  law.  Among  the  powers  of 
Congress  founded  thereon  are  many  provisions  which  may  be  re- 


6  INSTRUCTIONS  FOR  COURTS  AND  BOARDS. 

garded  as  the  source  or  sanction  of  our  present  military  law.  Of 
these  some  of  the  broader  are  the  provisions  empowering  Congress 
"  to  raise  and  support  armies  " ;  "  to  provide  and  maintain  a  Navy  " ; 
"  to  make  rules  for  the  government  and  regulation  of  the  land  and 
naval  forces";  and,  perhaps  the  most  important  of  all,  the  provision 
of  the  fifth  amendment. to  the  Constitution  to  the  effect  that  "  no  per- 
son shall  be  held  to  answer  for  a  capital  or  otherwise  infamous  crime 
unless  on  a  presentment  or  indictment  of  a  grand  jury,  except  in  cases 
arising  in  the  land  or  naval  forces,  or  in  the  militia^  when  in  actual 
service  in  time  of  war  or  public  danger." 

From  the  above  it  follows  that  "  military  law  "  is  a  broad  term 
and  comprises  the  code  of  laws  which  govern  the  Army,  Navy, 
Marine  Corps,  Coast  Guard,  and  any  other  organization  under  mili- 
tary discipline  and  forming  a  part  of  the  military  establishment  of 
the  United  States.  The  fact  that  these  organizations  are  each  gov- 
erned by  a 'somewhat  different  code,  and  that  the  jurisdiction  each 
exerts  does  not,  in  general,  extend  beyond  its  own  organization,  in 
no  sense  affects  the  fact  that  all  are  equally  governed  and  adminis- 
tered under  military  law.  Military  law  thus  governs  the  Navy 
as  well  as  the  Army,  but  while  the  government  of  the  latter  is  based 
upon  the  Articles  of  War,  that  of  the  former  is  based  upon  the 
Articles  for  the  Government  of  the  Navy. 

3.  Naval  law. — The  term  "  naval  law  "  is  used  as  a  matter  of  con- 
venience to  refer  to  and  distinguish  the  naval  code^  courts,  and 
laws  from  the  broad  term  "  military  law."     It  is  that  branch  of 
military  law  which  specifically  governs  the  Navy  as   a   separate 
community;  or,  more  precisely,  it  is  the  law  governing  the  officers 
and  enlisted  men  of  the  naval  forces  as  such.     (But  see  sec.  25  in 
connection  with  persons  coming  under  naval  jurisdiction.)     Naval 
law  is  active  in  time  of  peace  as  well  as  in  time  of  war  and  is 
largely,  but  not  entirely,  statutory  in  its  character. 

4.  Court-martial. — The  court-martial  is  the  principal  tribunal  by 
means  of  which  naval  law  is  administered.     It  is  a  court  convened 
pursuant  to  naval  law  for  the  adjudication  of  offenses  against  the 
naval  code.    Naval  courts-martial  are  established  by  virtue  of  the 
authority  conferred  by  the  Constitution  on  Congress  to  make  rules 
for  the  government  and  regulation  of  the  naval  forces.    Under  this 
authority,  taken   in   connection   with  that  conferred   in   the   fifth 
amendment  to  the  Constitution  (see  sec.  2),  Congress  may  provide 
for  the  trial  and  punishment  by  court-martial,  without  indictment 
or  the  intervention  of  a  jury,  of  all  offenses  committed  by  persons 
in  the  naval  forces  of  the  United  States.     (As  to  the  jurisdiction  of 
naval  courts-martial  see  sec.  21.) 


INSTRUCTIONS  FOR  COURTS  AND  BOARDS.  7 

5,  Sources  of  naval  law. — Very  generally,  there  are  two  sources  of 
naval  law : 

(1)  Written  sources. 

(2)  Unwritten  sources. 

6.  The  written  sources  of  naval  law  are : 

(a)     STATUTORY   ENACTMENTS    INCLUDING    THE    ARTICLES    FOR    THE    GOV- 
ERNMENT  OF  THE   NAVY. 

The  principal  body  of  naval  law  is  contained  in  the  statutes  en- 
acted by  Congress  relative  to  the  government  and  regulation  of  the 
naval  forces.  Of  these  the  most  important  are  to  be  found  in  the 
body  of  statutory  rules  known  as  the  Articles  for  the  Government  of 
the  Navy  (sec.  1624  of  the  Revised  Statutes).  These  articles,  to- 
gether with  subsequent  statutory  enactments  amending  or  affecting 
them,  are  quoted  in  Chapter  III.  However,  there  are  many  im- 
portant statutory  provisions  respecting  the  administration  of  the 
Navy  which  are  not  embraced  in  these  articles  but  are  to  be  found 
in  the  Revised  Statutes  and  in  the  volumes  of  the  Statutes  at  Large, 
the  former  being  a  codification  of  the  laws  of  the  United  States 
which  were  in  existence  prior  to  December  1,  1873,  and  the  latter 
containing  statutes  subsequently  enacted.  The  statutes  relating  to 
the  Navy  are  collected  in  a  departmental  publication  entitled  "  Laws 
Relating  to  the  Navy,  Annotated." 

(l>]    NAVY   REGULATIONS,  AND   INSTRUCTIONS    ISSUED   BY  THE   SECRETARY 

OF  THE  NAVY. 

The  Navy  Regulations  are  next  in  point  of  authority  to  the  formal 
enactments  of  Congress.  They  comprise  the  administrative  rules 
relating  to  the  Navy,  and  are  authorized  by  section  1547  of  the  Re- 
vised Statutes,  which  provides  that  "the  orders,  regulations,  and 
instructions  issued  by  the  Secretary  of  the  Navy  prior  to  July  14, 
1862,  writh  such  alterations  as  he  may  since  have  adopted,  with  the 
approval  of  the  President,  shall  be  recognized  as  the  regulations 
of  the  Navy,  subject  to  alterations  adopted  in  the  same  manner." 
In  naval  matters  the  President  speaks  and  acts  through  the  Secre- 
tary of  the  Navy,  and  regulations  issued  by  the  latter  are  in  legal 
contemplation  the  regulations  of  the  President.  In  some  instances 
the  President  expressly  approves ;  in  others  his  approval  is  implied ; 
but  the  legal  effect  is  the  same,  all  regulations  promulgated  by  the 
Secretary  of  the  Navy  being  equally  binding  and  having  the  full 
force  and  effect  of  law  whether  or  not  expressly  approved  by  the 
President. 

In  addition  to  the  Navy  Regulations  there  are  other  regulations 
or  instructions  issued  by  the  Secretary  of  the  Navy  for  the  guidance 
of  persons  in  the  Naval  Establishment  and  which  have  full  force 


8  INSTRUCTIONS  FOB  COURTS  AND  BOARDS. 

and  effect  as  regulations  on  all  such  persons.     Among  these  are 
General   Orders,   Uniform   Regulations,   Signal   and   Drill    Books, 
"  Naval  Courts  and  Boards,"  and  other  similar  publications. 
7.  The  unwritten  sources  of  naval  law  are : 

(a)    THE   DECISIONS    OF   COURTS. 

The  decisions  of  courts,  although  written,  are  usually  classed  as  a 
part  of  the  unwritten  law.  "  The  decision  of  a  court  which  estab- 
lishes or  declares  a  rule  of  law  may  be  reduced  to  writing  and  pub- 
lished in  the  reports ;  but  this  report  is  not  the  law ;  it  is  but  evidence 
of  the  law ;  it  is  but  a  written  account  of  one  application  of  a  legal 
principle,  which  principle,  in  the  theory  of  the  common  law,  is  still 
unwritten."  (Bouvier,  370.)  This  applies  as  well  to  the  decisions 
of  executive  authorities,  opinions  of  law  officers  of  the  Government, 
and  court-martial  orders. 

The  Constitution  provides  for  a  judicial  branch  of  our  Govern- 
ment for  the  purpose  of  interpreting  the  laws.  This  function  is 
exercised  by  means  of  the  Federal  courts  before  which  doubtful 
questions  of  law  arising  under  the  Federal  Government  are  brought 
for  decision.  Of  these  the  Supreme  Court  ranks  first  in  point  of 
authority,  but  the  decision  of  an  inferior  Federal  court,  while  not 
equal  in  weight  to  that  of  the  Supreme  Court,  is  none  the  less 
authoritative  in  the  absence  of  a  reversal  by  a  superior  tribunal. 
Accordingly,  when  a  law  relating  to  the  Navy  has  been  authorita- 
tively interpreted  by  the  proper  courts,  such  interpretation  becomes 
in  effect  a  part  of  the  law  as  fully  as  though  it  had  been  specifically 
written  therein  by  Congress.  Decisions  of  State  courts  also  fre- 
quently relate  to  the  interpretation  of  laws  affecting  the  Navy,  but 
such  decisions  are  not  controlling  on  the  Federal  Government,  but 
are  merely  instructive. 

(6)  THE  DECISIONS  OF  THE  PRESIDENT  AND  THE  SECRETARY  OF  THE 
NAVY  AND  THE  OPINIONS  OF  THE  ATTORNEY  GENERAL  AND  THE  JUDGE 
ADVOCATE  GENERAL  OF  THE  NAVY. 

Closely  related  to  the  decisions  of  courts  in  point  of  authority  are 
the  decisions  of  the  President  and  the  Secretary  of  the  Navy.  Under 
this  classification  fall  also  the  opinions  of  the  Attorney  General, 
the  chief  legal  adviser  of  the  executive  branch  of  the  Govern- 
ment, and  of  the  Judge  Advocate  General  of  the  Navy.  (For  the 
distinction  between  decisions  and  opinions  see  C.  M.  O.  37,  1916,  6.) 
While  the  Navy  Department  is  bound  by  interpretations  placed  on 
statutes  by  the  Federal  courts,  this  limitation  does  not  restrict  the 
department  in  making  authoritative  decisions  on  matters  coming 
within  its  jurisdiction  and  not  governed  by  statute.  To  illustrate, 


INSTRUCTIONS  FOR  COURTS  AND  BOARDS.  9 

the  decision  of  the  Federal  courts  that  the  statutes,  prior  to  the  act 
of  August  29,  1916,  39  Stat.,  651  (see  p.  46),  did  not  admit  of 
an  interpretation  permitting  an  enlisted  man  of  the  Marine  Corps 
to  be  tried  by  a  naval  general  court-martial  for  an  offense  committed 
while  serving  with  the  Army  by  order  of  the  President,  was  binding 
upon  the  Navy  Department  until  nullified  by  the  above  enactment. 
(See  C.  M.  O.  31,  1915,  6-10.)  On  the  other  hand,  no  statute  lays 
down  the  rules  of  evidence  to  govern  naval  courts-martial,  and  the 
decisions  of  the  department  on  such  a  question  are  the  highest  au- 
thority for  a  naval  court-martial  to  follow. 

(C)    COURT-MARTIAL    ORDERS. 

The  decisions  of  the  department  on  questions  of  law  and  evidence 
are  promulgated  to  the  service  through  the  medium  of  court-martial 
orders.  The  Navy  Regulations  provide  that  court-martial  orders 
"  shall  have  full  force  and  effect  as  regulations  for  the  guidance  of 
all  persons  in  the  Naval  Establishment,"  and  officers  of  the  naval 
service  are  responsible  for  the  observance  of  instructions  contained 
therein,  just  as  they  are  for  the  observance  of  other  lawful  regula- 
tions. It  is  to  be  noted  in  this  connection  that  certain  information 
is  promulgated  in  a  "  bulletin  "  contained  in  monthly  court-martial 
orders,  which  information  is  published  as  a  matter  of  convenience 
and  is  not  intended  "  to  have  the  full  force  and  effect  of  regulations 
as  do  remarks  forming  a  part  of  court-martial  orders  proper." 

(d)    CUSTOMS    AND   USAGES   OF   THE    SERVICE. 

Circumstances  from  time  to  time  arise  for  the  government  of 
which  there  are  no  written  rules  to  be  found.  In  such  cases  customs 
of  the  service  govern.  Customs  of  the  service  may  be  likened,  in 
their  origin  and  development,  to  the  portions  of  the  common  law  of 
England  similarly  established.  But  custom  is  not  to  be  confused  with 
usage ;  the  former  has  the  force  of  law ;  the  latter  is  merely  a  fact. 
There  may  be  usage  without  custom,  but  there  can  be  no  custom 
unless  accompanied  by  usage.  Usage  consists  merely  of  the  repeti- 
tion of  acts,  while  custom  is  created  out  of  their  repetition. 

Custom. — The  following  are  the  principal  conditions  to  be  ful- 
filled in  order  to  constitute  a  valid  custom : 

(1)  It  must  be  long  continued. 

(2)  It  must  be  certain  and  uniform. 

(3)  It  must  be  compulsory. 

(4)  It  must  be  consistent. 

(5)  It  must  be  general. 

(6)  It  must  be  known. 

(7)  It  must  not  be  in  opposition  to  the  terms  and  provisions  of 

a  statute  or  lawful  regulation  or  order. 


10  INSTRUCTIONS  FOB  COURTS  AND  BOARDS. 

As  usage  constantly  observed  for  a  long  period  results  iu  the 
establishment  of  a  custom,  so  long  continued  nonusage  will  operate 
to  destroy  a  particular  custom — that  is,  to  deprive  it  of  its  obligatory 
character. 

The  field  of  operation  of  the  unwritten  naval  law  is  extensive. 
It  is  applied  in  defining  certain  offenses  against  naval  law  and  in 
determining  whether  certain  acts  or  omissions  are  punishable  as 
such,  as  in  cases  coming  under  article  22  of  the  Articles  for  the 
Government  of  the  Navy.  (See  Ch.  III.)  At  times,  also,  custom 
is  appealed  to  as  a  rule  of  interpretation  of  terms  technical  to  the 
naval  service. 

Usage. — Mere  practices  or  usages  of  service,  although  long  con- 
tinued, are  not  customs  and  have  none  of  the  obligatory  force  which 
attaches  to  customary  law.  The  fact  that  such  usages  exist,  there- 
fore, can  never  be  pleaded  in  justification  of  conduct  otherwise 
criminal  or  reprehensible,  nor  relied  upon  as  a  complete  defense  in  a 
trial  by  court-martial.  With  the  permission  of  the  court,  however, 
they  may  be  introduced  in  evidence,  with  a  view  to  diminishing  to 
some  extent  the  degree  of  criminality  involved  in  the  offense  charged. 

8.  Digest  of  decisions  affecting  naval  law. — It  naturally  follows  that 
in  the  application  of  naval  law  there  arise  from  time  to  time  questions 
which  have  to  be  decided  by  the  Navy  Department.  The  more  im- 
portant of  such  decisions  are  published  in  court-martial  orders  for 
the  information  of  the  naval  service.  In  connection  with  these 
orders  there  is  published  annually  an  index-digest  of  the  orders  of 
the  year.  Also,  the  Naval  Digest,  a  departmental  publication,  con- 
tains a  digest  of  all  court-martial  orders  (1879-1916)  and  of  the 
more  important  decisions  and  opinions  affecting  naval  law.  Thus 
it  is  possible  for  officers  called  upon  to  apply  naval  law  to  readily 
find  the  decisions  of  the  department  affecting  the  application  of 
this  law. 

i 

• 


II. 


MILITARY  GOVERNMENT  AND  MARTIAL  LAW. 


26450°— 17 2  11 


MILITARY  GOVERNMENT  AND  MARTIAL  LAW. 

9.  Introductory. — While  the  two  latter  of  the  three  forms  of  mili- 
tary jurisdiction  mentioned  in  section  1 — namely,  military  govern- 
ment and  martial  law — belong  to  a  wider  field  of  jurisdiction  than 
that  ordinarily  exercised  in  naval  administration,  yet  it  not  infre- 
quently happens  that  the  Naval  Establishment  is  called  upon  to  act 
beyond  its  own  particular  sphere,  which  is  governed  by  naval  law, 
and  must  thereby  assume  jurisdiction  over  this  wider  field,  which  is 
based  upon  the  laws  of  war.     It  is  important,  therefore,  that  the 
naval  service  should  be  familiar  with   the  principles  of  military 
government  and  martial  law.     Unlike  naval  law,  which  is  mostly 
statutory,  they  are  based  upon  an  unwritten  code  known  as  the 
"  laws  of  war,"  and  are  not  capable  of  exact  definition.     While  these 
forms  of  military  control  can  not  be  here  covered  at  length  and 
with  completeness,  yet,  in  the  absence  of  any  present  naval  publica- 
tion on  the  subject,  the  following  is  given  for  the  purpose  of  serving 
as  an  outline  of  the  underlying  principles  involved  and  as  a  guide 
to  assist  officers  in  the  naval  service  who  may  be  called  upon  to  apply 
these  forms  of  military  control : 

10.  Distinction  between  military  government  and  martial  law. — In 
earlier  times  no  distinction  was  drawrn  between  military  government 
and  martial  law,  and  even  to-day  it  is  not  uncommon  to  find  some 
confusion  in  the  indiscriminate  use  of  these  terms.    However,  since  the 
recognition  of  this  distinction  in  the  Supreme  Court  (see  sec.  1), 
practically  all  authorities  distinguish  the  two  terms.     It  is  there- 
fore necessary  to  an  understanding  of  the  subject  to  have  this  dis- 
tinction clearly  in  mind.    To  this  end  the  following  is  quoted  from 
AYinthrop,  page  1245:  "Military  government,  as  the  term  is  here 
employed,  is  thus  a  government  exercised  over  the  belligerent  or 
other  inhabitants  of  an  enemy's  country  in  war  foreign  or  civil; 
martial  law  over  our  own  immediate  fellow  citizens,  who,  though 
perhaps  disaffected  or  in  sympathy  with  the  public  enemy,  are  not 
themselves  belligerents  or,  legally,  enemies.    The  occasion  of  military 
government  is  war;  the  occasion  of  martial  lawr  is  simply  public 
exigency,  which,  though  more  commonly  growing  out  of  pending 
war,  may  yet  present  itself  in  time  of  peace.    The  -field  of  military 
government  is  enemy's  country;  the  field  of  martial  law  our  own 

13 


14  INSTRUCTIONS  FOB  COURTS  AND  BOARDS. 

country  or  such  portion  of  it  as  is  involved  in  the  exigency.  Military 
government  is  further  distinguished  from  martial  law  in  that,  unlike 
the  latter  as  commonly  instituted,  it  calls  for  no  formal  proclamation 
or  declaration  of  its  inauguration,  but  exists  simply  as  a  consequence 
of  the  hostile  occupation.  A  proclamation  or  public  notice  to  the 
inhabitants,  informing  them  of  the  extent  of  the  occupation  arid  of 
the  powers  proposed  to  be  exercised,  is  a  customary  measure,  but  one 
not  essential  to  the  initiation  of  the  status  or  jurisdiction." 

11.  Military  government. — As  defined  in  Manual  for  Courts-Martial, 
United  States  Army,  page  1,  military  government  is  "  military 
power  exercised  by  a  belligerent,  by  virtue  of  his  occupation  of  an 
enemy's  territory,  over  such  territory  and  its  inhabitants."  This 
applies  not  only  to  the  occupied  territory  of  a  foreign  enemy  in  war, 
but  likewise  to  the  territory  of  the  United  States  in  cases  of  insur- 
rection and  rebellion  of  such  magnitude  that  the  rebels  are  treated 
as  belligerents.  Quoting  from  Davis,  page  300,  "  it  [  military  gov- 
ernment] applies  to  territory  over  which  the  Constitution  and  laws 
of  the  United  States  have  no  operation  and  in  which  the  guaranties 
which  are  contained  in  that  instrument  are  entirely  inoperative. 
Its  exercise  is  sanctioned  because  all  powers  of  sovereignty  have 
passed  into  the  hands  of  the  commanding  general  of  the  occupying 
forces  and  the  local  authority  is  unable  to  maintain  order  and  pro- 
tect life  and  property  in  the  immediate  theater  of  military  opera- 
tions, and  the  duty  of  such  protection  passes  to  the  permanent  or 
temporary  transfer  of  sovereign  power  and  authority  to  the  occu- 
pying belligerent.  In  this  case  the  mere  fact  of  hostile  occupation 
of  the  territory  of  the  enemy  constitutes  notice  to  the  inhabitants  of 
the  existence  of  the  government  by  military  occupation." 

It  follows,  then,  that  the  authority  for  military  government  lies  in 
the  mere  fact  of  occupation.  However,  it  is  to  be  noted  in  connection 
with  this  form  of  government  that  while,  as  defined  above,  it  is 
designed  principally  to  meet  the  conditions  arising  during  a  state  of 
war,  it  may  none  the  less  be  applied  to  a  peaceful  possession,  as,  for 
example,  the  present  (1917)  government  of  Guam,  for  the  essential 
feature  of  this  government  is  that  it  be  actually  exercised  over  a 
country  in  full  possession,  and  as  such  it  may  continue  without  the 
inhabitants  of  such  country  being  necessarily  characterized  as  ene- 
mies. Yet  the  necessity  for  military  government  arises  primarily 
from  a  state  of  war  or  a  state  approaching  war,  and  is  founded  upon 
the  laws  of  war,  and  ordinarily  is  administered  only  in  the  conduct 
thereof  or  pursuant  thereto.  For  this  reason  it  is  customary  for 
writers  on  the  subject  to  refer  to  a  state  of  belligerency  as  a  condition 
precedent  to  its  function.  It  is  likewise  to  be  noted  that  while  such 
writers  frequently  confine  their  comments  on  this  form  of  govern- 


INSTRUCTIONS  FOR  COURTS  AND  BOARDS.  15 

ment  to  a  contemplation  of  its  exercise  by  the  Army,  such  comments 
apply  with  equal  force  to  its  exercise  by  the  Navy. 

As  to  its  function  (quoting  from  Winthrop,  p.  1246),  military 
government,  founded  on  actual  occupation,  "is  an  exercise  of  sov- 
ereignty, and  as  such  dominates  the  country  which  is  its  theater  in 
all  the  branches  of  administration.  Whether  administered  by  officers 
of  the  army  of  the  belligerent  or  by  civilians  left  in  office  or  appointed 
by  him  (the  military  commander)  for  the  purpose,  it  is  the  govern- 
ment of  and  for  all  the  inhabitants,  native  or  foreign,  wholly  super- 
seding the  local  law  and  civil  authority  except  in  so  far  as  the  same 
may  be  permitted  by  him  to  subsist.  Civil  functionaries  who  are 
retained  will  be  protected  in  the  exercise  of  their  duties.  The  local 
laws  and  ordinances  may  be  left  in  force,  and  in  general  should  be, 
subject,  however,  to  their  being  in  whole  or  in  part  suspended  and 
others  substituted  in  their  stead,  in  the  discretion  of  the  governing 
authority." 

As  to  the  exercise  of  authority  and  functions  of  military  govern- 
ment it  was  stated  by  the  Supreme  Court  (see  sec.  1)  that  it  is 
"exercised  by  the  military  commander  under  the  direction  of  the 
President,  with  the  express  or  implied  sanction  of  Congress."  Quot- 
ing, in  comment  upon  this  statement,  from  Winthrop,  page  1248, 
"  Congress  having,  under  its  constitutional  powers,  declared  or  other- 
wise initiated  the  state  of  war  and  made  proper  provision  for  its 
carrying  on,  the  efficient  prosecution  of  hostilities  is  devolved  upon 
the  President  as  Commander  in  Chief.  In  this  capacity,  unless 
Congress  shall  specially  otherwise  provide,  it  will  become  his  right 
and  duty  to  exercise  military  government  over  such  portion  of  the 
country  of  the  enemy  as  may  pass  into  the  possession  of  his  army 
by  the  right  of  conquest.  In  such  government  the  President  repre- 
sents the  sovereignty  of  the  Nation,  but  as  he  can  not  administer  all 
the  details,  he  delegates,  expressly  or  impliedly,  to  the  commanders 
of  armies  under  him  the  requisite  authority  for  the  purpose.  Thus 
authorized,  these  commanders  may  legally  do  whatever  the  President 
might  himself  do  if  personally  present,  and  in  their  proceedings  and 
orders  are  presumed  to  act  by  the  President's  direction  or  sanction." 
As  to  the  extent  of  the  power  thus  conferred  (quoting  further) ,  "  the 
power  of  military  government  thus  vested  in  the  President  or.  his 
military  subordinates  is  a  large  and  extraordinary  one,  being  subject 
only  to  such  conditions  and  restrictions  as  the  law  of  war,  in  defining 
the  particulars  to  which  it  may  extend,  imposes  upon  the  scope  of 
its  exercise.  As  it  is  expressed  by  the  Supreme  Court,  the  govern- 
ing authority  'may  do  anything  necessary  to  strengthen  itself  and 
weaken  the  enemy.  There  is  no  limit  to  the  powers  that  may  be  ex- 
erted in  such  cases  save  those  which  are  found  in  the  laws  and  usages 
of  war.'  (New  Orleans  v.  Steamship  Co.,  20  Wall.,  387.) "  But  this 


16  INSTRUCTIONS  FOR  COURTS  AND  BOARDS. 

broad  statement  is  somewhat  qualified  by  the  language  of  the  Su- 
preme Court  in  a  later  case,  to  the  effect  that  "  while  his  [military 
commander's]  power  is  necessarily  despotic,  this  must  be  understood 
rather  in  an  administrative  than  in  a  legislative  sense.  While  in 
legislating  for  a  conquered  country  he  may  disregard  the  laws  of 
that  country,  he  is  not  wholly  above  the  laws  of  his  own.  * 
His  power  to  administer  would  be  absolute,  but  his  power  to  legis- 
late would  not  be  without  certain  restrictions — in  other  words,  they 
would  not  extend  beyond  the  necessities  of  the  case."  (Doolev  v. 
United  States,  182  U.  S.,  222.) 

12.  Martial  law. — Martial  law,  as  defined  in  Manual  for  Courts- 
Martial,  United  States  Army,  page  1,  is  "military  power  exercised 
in  time  of  war,  insurrection,  or  rebellion  in  parts  of  the  country 
retaining  their  allegiance,  and  over  persons  and  things  not  ordi- 
narily subjected  to  it."  That  is,  it  is  the  law  exercised  by  the  com- 
mander of  armed  forces  of  a  State  which  have  occupied  certain  terri- 
tory of  such  State  because  by  reason  of  some  public  exigency  the 
due  operation  of  ordinary  law  in  such  territory  has  been  obstructed 
to  such  extent  that  life,  property,  and  other  rightful  enjoyments 
of  the  inhabitants  can  not  be  protected  thereby.  In  regard  to  the 
extent  of  the  jurisdiction  and  power  of  martial  law  there  is  some 
difference  of  opinion  among  authorities  and  conflict  in  the  decisions 
of  courts.  The  following  statement,  however,  as  to  the  limitations 
of  this  form  of  law  is  believed  to  be  a  safe  guide :  "  The  employment 
of  martial  law  has  been  likened  to  the  exercise  of  the  right  of  self- 
defence  by  an  individual.  Its  occasion  and  justification  thus  is 
necessity.  But  though  in  general  without  other  limit  than  the  dis- 
cretion of  the  commander  upon  whom  its  execution  is  devolved,  it 
is  not  an  absolute  power,  but  one  to  be  exercised  with  such  stringency 
only  as  circumstances  may  require.  *  *  *  Martial  law  is  indeed 
resorted  to  as  much  for  the  protection  of  the  lives  and  property  of 
peaceable  individuals  as  for  the  repression  of  hostile  or  violent  ele- 
ments. It  may  become  requisite  that  it  supersede  for  the  time  the 
existing  civil  institutions;  but,  in  general,  except  in  so  far  as  relates 
to  persons  violating  military  orders  or  regulations,  or  otherwise  in- 
terfering with  the  exercise  of  military  authority,  martial  law  does 
not  in  effect  suspend  the  local  law  or  jurisdiction  or  materially  re- 
strict the  liberty  of  the  citizen."  (Winthrop,  p.  1279.)  Thus  the 
military  commander  of  forces  occupying  territory  under  martial  law 
is  not  a  military  governor  of  such  territory.  Such  military  com- 
mander should,  however,  use  such  force  as  may  be  necessary  to  main- 
tain order  and  protect  persons  and  property  from  violence.  Further 
than  this  he  should  not  interfere  with  persons  or  property  rights. 
But  so  long  as  martial  law  obtains  the  inhabitants  of  the  territory  to 
which  it  applies  must  look  to  the  military  forces  for  protection.  To 


INSTRUCTIONS  FOR   COURTS  AND  BOARDS.  17 

this  end  the  military  commanaer  may  try  by  military  tribunals 
offenders  against  the  peace  and  military  authority,  but  he  may  not 
go  beyond  the  necessities  of  the  case  and  attempt  to  usurp  the  full 
legislative,  executive,  and  judicial  powers  over  the  territory  under 
his  control. 

13.  Exceptional  military  courts. — Since  a  naval  court-martial  is  a 
court  of  limited  jurisdiction,  restricted  by  law  to  the  trial  of  officers 
and  men  of  the  naval  service,  it  is  apparent  that,  in  order  to  exercise 
the  power  conferred  upon  the  Naval  Establishment  when  its  duty  is 
such  as  to  place  under  it  a  wider  jurisdiction  in  accordance  with  the 
principles  of  this  chapter,  it  is  necessary  to  employ  tribunals  other 
than  those  considered  in  the  following  chapters  in  connection  with 
the  administration  of  naval  law.    Such  tribunals  have  been  referred 
to  by  the  Navy  Department  as  exceptional  military  courts,  and  in- 
clude the  military  commission,  the  superior  provost  court,  and  the 
provost  court. 

These  exceptional  military  courts,  unlike  the  court-martial,  derive 
their  sanction  from  the  laws  of  war  and  not  from  the  enactments  of 
Congress.  The  constitution  and  procedure  of  such  courts  is  nowhere 
prescribed  by  statute.  Nor  does  any  law  limit  the  sentence  which  may 
be  adjudged  by  such  courts.  The  offense,  which  may  be  either  a  civil 
crime  or  violation  of  the  laws  of  war  or  orders  of  military  authority, 
may  be  charged  by  merely  setting,  forth  a  designation  of  the  offense 
in  cases  of  minor  offenses  triable  by  provost  court ;  but,  in  the  cases 
of  the  more  serious  offenses  triable  by  superior  provost  court  and 
military  commission,  there  should  be  a  detailed  specification  as  in 
court-martial  practice,  and  such  specification  should  show  on  its  face 
the  circumstances  conferring  jurisdiction;  as,  for  example,  that  the 
offender  was  an  inhabitant  of  a  district  under  military  government. 

14.  Conduct  of  exceptional  military  courts  when  held  by  naval  author- 
ity.—The  Navy  Department,  in  C.  M.  O.  13,  1916,  laid  down  the 
following  instructions  in  regard  to  the  conduct  of  exceptional  mili- 
tary courts  when  held  by  naval  authority : 

"When  exceptional  military  trials,  whether  by  military  commis- 
sions or  provost  courts,  are  held  by  naval  authority,  the  commission 
or  court  conducting  such  trials  shall  be  constituted  and  organized  and 
shall  conduct  its  proceedings  in  the  manner  provided  for  naval 
courts-martial  or  deck  courts,  so  far  as  the  exigencies  of  the  service 
may  permit.  Similarly,  records  shall  be  kept  of  the  proceedings, 
which  upon  completion  shall  be  transmitted  to  the  Judge  Advocate 
General  of  the  Navy  to  be  revised  and  recorded.  No  sentence  of 
death  shall  be  carried  into  execution  until  confirmed  by  the  Secretary 
of  the  Navy;  all  other  sentences  may  be  executed  upon  approval  of 
the  convening  authority.  The  jurisdiction  of  every  such  commission 
or  provost  court,  in  the  matter  of  the  punishments  which  it  may 


18  INSTRUCTIONS  FOR   COURTS  AND  BOARDS. 

adjudge,  shall  be  limited  in  the  discretion  of  the  convening  authority 
and  shall  be  expressly  stated  in  his  order  convening  such  commission 
or  provost  court." 

Supplementary  to  the  above  and  subject  to  the  remark  that  the 
military  commander  of  occupying  forces  is,  by  the  laws  of  war, 
charged  with  the  administration  of  the  occupied  territory,  and  is, 
therefore,  not  to  be  unduly  restricted  in  the  measures  to  be  employed 
in  such  administration,  the  Navy  Department,  in  C.  M.  O.  15,  1917, 
laid  down  the  following  as  a  guide  in  respect  to  the  above-mentioned 
military  courts: 

"A  military  commission  should,  in  general,  correspond  to  a  general 
court-martial  both  as  to  its  constitution  and  as  to  its  proceedings. 
Except  in  a  case  where  the  convening  authority  may,  for  military  rea- 
sons, direct  otherwise,  all  evidence  taken  before  such  commission  shall 
be  recorded  as  in  general  courts-martial.  A  military  commission 
should  be  limited  in  the  punishments  which  it  may  adjudge  only  to 
such  an  extent  as  the  convening  authority  may  deem  proper. 

" A  superior  provost  court  should,  in  general,  correspond  to  a  sum- 
mary court-martial  both  as  to  its  constitution  and  as  to  its  proceed- 
ings. Except  where  the  convening  authority  may,  for  military  rea- 
sons, direct  otherwise,  evidence  introduced  before  such  court  shall  be 
recorded.  A  superior  provost  court  ordinarily  should  not  be  granted 
authority  to  impose  sentences  involving  confinement  for  more  than 
five  years  nor  fines  of  more  than  $3,000. 

"-4  provost  court  should,  in  general,  correspond  to  a  deck  court 
both  as  to  its  constitution  and  as  to  its  proceedings.  Evidence  taken 
before  such  court  need  not  ordinarily  be  recorded.  A  provost  court 
ordinarily  should  not  be  granted  authority  to  impose  sentences  in- 
volving confinement  for  more  than  six  months  nor  fines  of  more  than 
$300. 

"  The  authority  to  convene  the  above-mentioned  exceptional  mili- 
tary courts  vests  only  in  the  military  commander  or  military  gov- 
ernor of  an  occupied  territory,  and  all  such  courts  may  be  ordered 
only  in  the  name  of  such  commander  or  governor.  When  a  mili- 
tary commander  or  governor  desires  to  authorize  an  officer  under 
his  command  to  convene  any  of  the  above  courts  he  may  delegate 
such  authority  to  a  subordinate,  but  the  latter  may  so  act  only  as 
a  representative  and  in  the  name  of  the  military  commander  or 
governor.  When  so  acting,  such  subordinate  officer  may,  subject  to 
any  action  in  remission  or  mitigation  he  may  see  fit  to  take,  upon 
his  own  approval,  put  into  immediate  execution  the  sentences  of 
such  exceptional  military  courts  as  the  military  commander  or  gov- 
ernor has  empowered  him  to  convene.  But  in  all  cases  the  records 
of  such  courts  shall  be  forwarded  to  the  military  commander  or 
governor,  who  shall  review  all  such  records,  and  who  may  set 


INSTRUCTIONS   FOE   COURTS  AND   BOARDS.  19 

aside  the  proceedings,  or  remit  or  mitigate,  in  whole  or  in  part, 
the  sentence  imposed  by  any  military  commission,  superior  pro- 
vost court,  provost  court,  or  other  exceptional  military  court  con- 
vened by  his  order  or  by  that  of  his  predecessor  in  command,  or 
by  that  of  any  officer  under  his  command  or  the  predecessor  of 
any  such  officer.  Also  nothing  herein  shall  be  taken  to  modify 
the  limitation  prescribed  in  C.  M.  O.  13,  1916,  6  [above  quoted], 
in  regard  to  the  execution  of  a  death  sentence. 

"In  so  far  as  practicable,  the  employment  of  exceptional  mili- 
tary courts  should^,  as  a  general  rule,  be  restricted  to  the  trial  of 
offenses  in  breach  of  the  peace,  in  violation  of  military  orders  or 
regulations,  or  otherwise  in  interference  with  the  exercise  of  mili- 
tary authority. 

"Inasmuch  as  the  most  frequent  offenses  are  the  minor  offenses 
which  should  be  tried  by  provost  court,  the  following  form  is  given 
to  guide  in  such  cases: 

"  PRECEPT. 

"(Place  and  date.) 

"  Captain  A—       -  B ,  U.  S.  Marine  Corps,  is  hereby  ordered  as 

provost  court  for  the  district  of  -   (or  otherwise  describe  the 

locality)  for  the  trial  of  such  of  the  inhabitants  or  sojourners  therein, 
not  including  members  of  the  military  services  of  the  United  States 
(and  other  exceptions  if  desired),  as  may  commit  offenses  not  deemed 
to  warrant  punishment  exceeding  confinement,  with  or  without  hard 
labor,  for  thirty  days  and  fines  not  exceeding  $100  (and  any  other 
restrictions  upon  the  offenses  coming  under  the  jurisdiction  of  this 
court  which  may  be  desired). 

"All  cases  brought  before  this  court  which  the  court  shall  deem 
deserving  of  a  greater  punishment  than  that  above  prescribed  shall 
be  certified  to  the  superior  provost  court  for  the  district  of  - 
and  the  offenders  shall  be  ordered  kept  in  confinement  awaiting  the 
action  of  such  superior  court  (or  shall  be  reported  to  the  under- 
signed for  other  disposition  of  their  cases). 

"  Reports  of  cases  tried  and  dispositions  thereof  shall  be  rendered 
daily  to  the  undersigned. 

« C-       -  D-     -, 
"  Rear  Admiral,  U.  S.  Navy, 
"  Commanding  U.  S.  Forces  Occupying . 


"  When  the  authority  to  convene  such  courts  has  been  delegated  by 
the  military  commander  to  a  subordinate  the  precept  should  so  state. 
Thus  the  above  should  read : 

"  In  accordance  with  the  authority  delegated  to  me  by  Rear  Ad- 
miral C D ,  U.  S.  Navy,  commanding  the  U.  S.  forces 

occupying  — ,  under  date  of ,  Captain  A- 

U.  S.  Marine  Corps,  is  hereby  ordered,  etc.     *     * 


20  INSTRUCTIONS  FOR  COURTS  AND  BOARDS. 


(Place  and  date.) 

"  Proceedings  of  Provost  Court  held  for  the  district  of  -       — ,  by 
the  authority  of  (name  and  office  of  the  convening  authority),  under 
date  of-     — . 
"  The  court  met  at  10  a.  m. 

"  E F was  arraigned  on  the  charge  of  -        — ,  and 

pleaded  as  follows: 

"  Witnesses  for  prosecution : 
"  Witnesses  for  defense : 

"  (Testimony  of  witnesses  need  not  be  recorded.) 
"  Finding :  Guilty.     (Not  guilty) . 

"  Sentence :  Confinement  for  —  days  (with  or  without  hard  labor)  ; 
or,  to  be  fined  -  -  dollars ;  or,  confinement  for  —  days  and  to  be 

fined  dollars. 

"A B , 

"  Captain,  U.  JS.  Marine  Corps. 

"  Provost  Court. 

"  G H was  arraigned,  etc. 

"  The  court  adjourned  at  -  — — ." 

15.  Exercise  of  military  government  and  martial  law  by  the  Navy. — 
Generally,  it  may  be  said  that  while  military  government  and 
martial  law  both  derive  their  sanction  from  the  laws  of  war,  this 
code  is  adopted  by  the  former  to  a  greater  extent  than  by  the  latter. 
Both  are  resorted  to  by  reason  of  the  needs  of  the  occasion;  the 
former  status  arising  from  a  foreign  occupancy,  the  latter  from  a 
domestic  necessity.  As  to  the  application  of  these  principles  by 
naval  authority,  the  normal  situation  requiring  same  would  be  that 
arising  from  the  occupation  of  a  foreign  port  and  its  contiguous 
territory  by  naval  forces,  thus  making  it  necessary  for  the  commander 
to  institute  military  government.  It  may  happen,  if  the  distinction 
set  forth  in  this  chapter  is  not  observed,  that  a  military  commander 
will  be  exercising  all  the  functions  of  military  government  and  yet 
refer  to  the  existing  status  as  one  of  martial  law.  As  has  been  seen, 
military  government  is  a  question  of  fact,  and  the  important  thing  is 
that  it  actually  be  established.  Its  prerogatives  and  functions  then 
naturally  follow,  irrespective  of  the  term  which  may  be  used  to  refer 
to  the  exercise  of  this  power.  The  terms  military  government  and 
martial  law  merely  describe  states  of  affairs  which  are  sanctioned 
by  the  unwritten  law,  and  are  not  terms  of  the  written  law  on 
which  states  of  affairs  are  predicated.  The  controlling  factor  is 
what  the  state  of  affairs  happens  to  be,  not  what  it  is  called.  The 
use  of  the  proper  descriptive  term  tends  to  clarity,  an  inaccurate  de- 
scription leads  to  confusion ;  the  actual  operation  is  the  same.  Like- 


INSTRUCTIONS  FOR  COURTS  AND  BOARDS.  21 

wise,  in  the  matter  of  a  proclamation  declaring  the  establishment  of 
a  form  of  military  control,  the  important  thing  is  to  set  forth  the 
state  of  affairs  which  exists,  to  define  the  district  or  territory  to 
which  the  proclamation  applies,  to  state  the  extent  to  which  the  civil 
administration  will  be  affected,  the  manner  in  which  it  is  desired 
that  the  inhabitants  conduct  themselves,  the  measures  which  will  be 
resorted  to — in  short,  the  proclamation  should  be  illuminative  of  ex- 
isting conditions  and  of  the  will  of  the  declaring  power.  While  the 
conditions  which  might  call  for  such  proclamation  are  varied  and  in 
each  case  the  particular  circumstances  must  control,  the  following  is 
given  as  a  guide  for  cases  in  which  it  is  desired  to  announce  the  es- 
tablisment  of  military  government  in  an  occupied  port  and  its  con- 
tiguous territory: 

PROCLAMATION. 

The  United  States  naval  forces  under  my  command  have  occupie'd  the  city 
of  —  — ,  -  — .  I  therefore  proclaim  that  in  accordance  with  the  laws  of 
nations  and  the  usages,  customs,  and  functions  of  my  own  and  other  Govern- 
ments, I  am  vested  with  the  power  and  responsibility  of  government  in  all 
its  functions  throughout  the  city  of  —  —  and  the  territory  contiguous  thereto, 
now  occupied  by  the  forces  under  my  command,  and  such  additional  territory 
as  may  be  hereafter  occupied  by  such  forces. 

It  is  intended  that  civil  affairs  be  administered  by  the  existing  local  govern- 
ment, so  long  as  peace  and  good  order  are  maintained  in  the  city.  To  this 
end  all  the  municipal  and  other  civil  employees  are  requested  to  continue  in 
their  present  vocations,  without  change,  and  the  administration  of  civil  func- 
tions and  justice  will  continue  through  the  usual  offices  and  courts  existing  in 
the  country,  except  in  so  far  as  relates  to  persons  violating  military  orders  or 
otherwise  interfering  with  the  exercise  of  military  authority,  in  cases  affecting 
the  military  forces  of  the  United  States,  and  in  political  cases. 

All  peaceful  citizens  can  confidently  pursue  their  usual  occupations,  feeling 
that,  so  long  as  they  continue  so  to  act,  they  will  be  protected  in  their  persons, 
property,  and  private  rights  and  relations.  Offenses  against  the  forces  of  the 
United  States  and  in  violation  of  the  military  orders  or  regulations  or  in  inter- 
ference with  the  exercise  of  military  authority  will  be  punished  in  accordance 
with  the  unwritten  code  which  is  known  as  the  laws  of  war.  For  this  purpose 
all  offenders  in  the  matters  aforesaid  shall  be  promptly  seized,  confined,  and 
reported  for  trial  by  military  commissions  or  provost  courts,  as  the  case  may 
be,  which  will  be  appointed  and  conducted  in  accordance  with  the  laws  of  war 
and  the  rules  and  regulations  of  the  Government  of  the  United  States  relating 
thereto. 

The  commanding  officer  of  the  forces  of  the  United  States  will  from  time  to 
time  issue  rules  for  the  guidance  of  inhabitants,  and  will  issue  the  necessary 
regulations  and  appoint  the  necessary  officers  for  the  proper  administration  of 
government. 

Done  at  the  city  of  —     — ,  —     — ,  this  —  —  day  of  —     — ,  19 — . 

Rear  Admiral,  United  States  Navy, 
Commanding  United  States  Forces  Occupying  . 


• 


. 

' 


III. 

ARTICLES  FOR  THE  GOVERNMENT  OF  THE  NAVY 
TOGETHER  WITH  SUBSEQUENT  STATUTORY 
ENACTMENTS  RELATING  TO  ADMINIS- 
TRATION OF  JUSTICE  IN 
THE  NAVY. 


23 


/110TOTAT8  raUt 

. 


AKTICLES  FOR  THE  GOVERNMENT  OF  THE  NAVY,  TO- 
GETHER WITH  SUBSEQUENT  STATUTORY  ENACT- 
MENTS RELATING  TO  ADMINISTRATION  OF  JUSTICE 
IN  THE  NAVY. 

16.  History. — "  Rules  for  the  regulation  of  the  Navy  of  the  United 
Colonies"  were  adopted  by  the  Continental  Congress  on  November 
28,  1775.    These  rules  were  reenacted  and  continued  in  force  by  an 
act  of  Congress  approved  July  1,  1797  (1  Stat,  525).    Thereafter, 
on  March  2,  1799,  there  was  approved  "An  act  for  the  government 
of  the  Navy  of  the  United  States."     (1   Stat.,  709.)     On  March 
2,  1855,  there  was  passed  "An  act  to  provide  a  more  efficient  dis- 
cipline for  the  Navy."     (10  Stat.,  627.)     And  on  July  17,  1862,  there 
was  enacted  another  "Act  for  the  better  government  of  the  Navy  of 
the  United  States."     (12  Stat.,  600.)     The  above  acts  are  the  princi- 
pal sources  of  the  present  "Articles  for  the  Government  of  the  Navy." 

17.  The  Articles  for  the  Government  of  the  Navy. — Section  1624  of  the 
Revised  Statutes  is  a  codification,  under  the  title  of  "Articles  for  the 
Government  of  the  Navy,"  of  the  laws  in  existence  prior  to  December 
1,  1873,  governing  the  administration  of  justice  in  the  Navy.    These 
articles  comprise,  in  addition  to  the  aforementioned  acts,  in  whois 
or  in  part,  the  following  legislation  pertaining  to  the  Navy : 

Acts  of  August  26,  1842  (5  Stat,  535) ;  July  30,  1846  (9  Stat, 
44)  ;  August  5,  1861  (12  Stat.,  316) ;  February  13,  1862  (12  Stat., 
340)  ;  March  13,  1862  (12  Stat,  354)  ;  July  14,  1862  (12  Stat,  565)  : 
March  2,  1863  (12  Stat,  696) ;  March  3,  1863  (12  Stat,  737)  ;  May 
16,  1864  (13  Stat,  75)  ;  July  13,  1866  (14  Stat.,  92)  ;  March  2,  1867 
(14  Stat.,  516) ;  July  15, 1870  (16  Stat,  334) ;  June  6,  1872  (17  Stat., 
261). 

18.  Subsequent  statutory  enactments. — The  Articles  for  the  Govern- 
ment of  the  Navy,  as  published  in  the  Revised  Statutes,  have  since 
been  amended  and  affected  by  the  following  legislation : 

Acts  of  March  16,  1878  (20  Stat,  30)  ;  March  3,  1893  (27  Stat.. 
716) ;  February  25,  1895  (28  Stat.,  680) ;  February  27,  1895  (28 
Stat.,  689) ;  March  3,  1899,  section  13  (30  Stat,,  1007) ;  May  13,  1908 
(35  Stat.,  132)  ;  February  16,  1909  (35  Stat.,  621-623)  ;  August  22, 
1912  (37  Stat,  356) ;  and  August  29, 1916  (39  Stat.,  586). 

25 


26  INSTRUCTIONS   FOB  COURTS  AND  BOARDS. 

19.  The  following  is  a  compilation  of  "Articles  for  the  Government 
of  the  Navy,  together  with  subsequent  statutory  enactments  relat- 
ing to  administration  of  justice  in  the  Navy." 

The  Navy  of  the  United  States  shall  be  governed  by  the  following 
articles : 

ARTICLE   1. 

The  commanders  of  all  fleets,  squadrons,  naval  stations,  and 
vessels  belonging  to  the  Navy  are  required  to  show  in  themselves 
a  good  example  of  virtue,  honor,  patriotism,  and  subordination; 
to  be  vigilant  in  inspecting  the  conduct  of  all  persons  who  are 
placed  under  their  command;  to  guard  against  and  suppress  all 
dissolute  and  immoral  practices,  and  to  correct,  according  to  the 
laws  and  regulations  of  the  Navy,  all  persons  who  are  guilty  of 
them;  and  any  such  commander  who  offends  against  this  article 
shall  be  punished  as  a  court-martial  may  direct. 


ARTICLE   2. 


The  commanders  of  vessels  and  naval  stations  to  which  chaplains 
are  attached  shall  cause  divine  service  to  be  performed  on  Sunday, 
whenever  the  weather  and  other  circumstances  allow  it  to  be  done ; 
and  it  is  earnestly  recommended  to  all  officers,  seamen,  and  others 
in  the  naval  service  diligently  ~fo  attend  at  every  performance  of 
the  worship  of  Almighty  God. 

ARTICLE   3. 

. 

Any  irreverent  or  unbecoming  behavior  during  divine  service  shall 

be  punished  as  a  general  or  summary  court-martial  may  direct. 

ARTICLE   4. 

The  punishment  of  death,  or  such  other  punishment  as  a  court- 
martial  may  adjudge,  may  be  inflicted  on  any  person  in  the  naval 
service 

1.  Who  makes,  or  attempts  to  make,  or  unites  with  any  mutiny 
or  mutinous  assembly,  or,  being  witness  to  or  present  at  any  mutiny, 
does  not  do  his  utmost  to  suppress  it ;  or,  knowing  of  any  mutinous 
assembly  or  of  any  intended  mutiny,  does  not  immediately  com- 
municate his  knowledge  to  his  superior  or  commanding  officer ; 

2.  Or  disobeys  the  lawful  orders  of  his  superior  officer ; 

3.  Or  strikes  or  assaults,  or  attempts  or  threatens  to  strike  or 
assault,  his  superior  officer  while  in  the  execution  of  the  duties  of 
his  office; 

4.  Or  gives  any  intelligence  to,  or  holds  or  entertains  any  inter- 
course with,  an  enemy  or  rebel,  without  leave  from  the  President, 


INSTRUCTIONS  FOE   COURTS  AND  BOARDS.  27 

the  Secretary  of  the  Navy,  the  commander  in  chief  of  the  fleet,  the 
commander  of  the  squadron,  or,  in  case  of  a  vessel  acting  singly, 
from  his  commanding  officer; 

5.  Or  receives  any  message  or  letter  from  an  enemy  or  rebel,  or, 
being  aware  of  the  unlawful  reception  of  such  message  or  letter, 
fails  to  take  the  earliest  opportunity  to  inform  his  superior  or  com- 
manding officer  thereof; 

6.  Or,  in  time  of  war,  deserts  or  entices  others  to  desert ; 

7.  Or,  in  time  of  war,  deserts  or  betrays  his  trust,  or  entices  or 
aids  others  to  desert  or  betray  their  trust ; 

8.  Or  sleeps  upon  his  watch ; 

9.  Or  leaves  his  station  before  being  regularly  relieved ; 

10.  Or  intentionally  or  willfully  suffers  any  vessel  of  the  Navy  to 
be  stranded,  or  run  upon  rocks  or  shoals,  or  improperly  hazarded; 
or  maliciously  or  willfully  injures  any  vessel  of  the  Navy,  or  any 
part  of  her  tackle,   armament,  or  equipment,  whereby  the   safety 
of  the  vessel  is  hazarded  or  the  lives  of  the  crew  exposed  to  danger ; 

11.  Or  unlawfully  sets  on  fire,  or  otherwise  unlawfully  destroys, 
any  public  property  not  at  the  time  in  possession  of  an  enemy, 
pirate,  or  rebel; 

12.  Or  strikes  or  attempts  to  strike  the  flag  to  an  enemy  or  rebel, 
without  proper  authority,  or,  when  engaged  in  battle,  treacherously 
yields  or  pusillanimously  cries  for  quarter ; 

13.  Or,  in  time  of  battle,  displays  cowardice,  negligence,  or  dis- 
affection, or  withdraws  from  or  keeps  out  of  danger  to  which  he 
should  expose  himself; 

14.  Or,  in  time  of  battle,  deserts  his  duty  or  station,  or  entices 
others  to  do  so; 

15.  Or  does  not  properly  observe  the  orders  of  his  commanding 
officer,  and  use  his  utmost  exertions  to  carry  them  into  execution, 
when  ordered  to  prepare  for  or  join  in,  or  when  actually  engaged 
in,  battle,  or  while  in  sight  of  an  enemy ; 

16.  Or,  being  in  command  of  a  fleet,  squadron,  or  vessel  acting 
singly,  neglects,  when  an  engagement  is  probable,  or  when  an  armed 
vessel  of  an  enemy  or  rebel  is  in  sight,  to  prepare  and  clear  his  ship 
or  ships  for  action; 

17.  Or  does  not,  upon  signal  for  battle,  use  his  utmost  exertions 
to  join  in  battle; 

18.  Or  fails  to  encourage,  in  his  own  person,  his  inferior  officers 
and  men  to  fight  courageously; 

19.  Or  does  not  do  his  utmost  to  overtake  and  capture  or  destroy 
any  vessel  which  it  is  his  duty  to  encounter ; 

20.  Or  does  not  afford   all   practicable  relief   and   assistance  to 
vessels  belonging  to  the  United  States  or  their  allies  when  engaged 
in  battle. 

26450°— 17 3 


28  INSTRUCTIONS  FOR  COURTS  AND  BOARDS. 

ARTICLE  5. 

All  persons  who,  in  time  of  war,  or  of  rebellion  against  the  supreme 
authority  of  the  United  States,  come  or  are  found  in  the  capacity  of 
spies,  or  who  bring  or  deliver  any  seducing  letter  or  message  from 
an  enemy  or  rebel,  or  endeavor  to  corrupt  any  person  in  the  Navy 
to  betray  his  trust,  shall  suffer  death,  or  such  other  punishment  as 
a  court-martial  may  adjudge. 

ARTICLE  6. 

If  any  person  belonging  to  any  public  vessel  of  the  United  States 
commits  the  crime  of  murder  without  the  territorial  jurisdiction 
thereof,  he  may  be  tried  by  court-martial  and  punished  with  death. 

ARTICLE    7. 

1  X  j.'      1  T         1  XI  'I  A.  !_•      • 

A  naval  court-martial  may  adjudge  the  punishment  of  imprison- 
ment for  life,  or  for  a  stated  term,  at  hard  labor,  in  any  case  where 
it  is  authorized  to  adjudge  the  punishment  of  death;  and  such  sen- 
tences of  imprisonment  and  hard  labor  may  be  carried  into  execution 
in  any  prison  or  penitentiary  under  the  control  of  the  United  States, 
or  which  the  United  States  may  be  allowed,  by  the  legislature  of  any 
State,  to  use;  and  persons  so  imprisoned  in  the  prison  or  peniten- 
tiary of  any  State  or  Territory  shall  be  subject,  in  all  respects,  to 
the  same  discipline  and  treatment  as  convicts  sentenced  by  the  courts 

of  the  State  or  Territory  in  which  the  same  may  be  situated. 

;*!• 

ARTICLE   8. 


Such  punishment  as  a  court-martial  may  adjudge  may  be  inflicted 
on  any  person  in  the  Navy — 

1.  Who  is  guilty  of.  profane  swearing,   falsehood,   drunkenness, 
gambling,  fraud,  theft,  or  any  other  scandalous  conduct  tending  to 
the  destruction  of  good  morals; 

2.  Or  is  guilty  of  cruelty  toward  or  oppression  or  maltreatment  of 
any  person  subject  to  his  orders; 

3.  Or  quarrels  with,   strikes,  or  assaults,  or  uses  provoking  or 
reproachful  words,  gestures,  or  menaces  toward,  any  person  in  the 
Navy; 

4.  Or  endeavors  to  foment  quarrels  between  other  persons  in  the 
Navy ; 

5.  Or  sends  or  accepts  a  challenge  to  fight  a  duel  or  acts  as  a 
second  in  a  duel; 

6.  Or  treats  his  superior  officer  with  contempt,  or  is  disrespectful 
to  him  in  language  or  deportment,  while  in  the  execution  of  his 
office , 

g_7i_>o<: 


INSTRUCTIONS  FOB  COURTS  AND  BOARDS.  29 

7.  Or  joins  in  or  abets  any  combination  to  weaken  the  lawful 
authority  of,  or  lessen  the  respect  due,  to  his  commanding  officer; 

8.  Or  utters  any  seditious  or  mutinous  words ; 

9.  Or  is  negligent  or  careless  in  obeying  orders,  or  culpably  ineffi- 
cient in  the  performance  of  duty ; 

10.  Or  does  not  use  his  best  exertions  to  prevent  the  unlawful 
destruction  of  public  property  by  others ; 

11.  Or,  through  inattention  or  negligence,  suffers  any  vessel  of 
the  Navy  to  be  stranded,  or  run  .upon  a  rock  or  shoal,  or  hazarded ; 

12.  Or,  when  attached  to  any  vessel  appointed  as  convoy  to  any 
merchant  or  other  vessels,  fails  diligently  to  perform  his  duty,  or 
demands  or  exacts  any  compensation  for  his  services,  or  maltreats 
the  officers  or  crews  of  such  merchant  or  other  vessels; 

13.  Or  takes,  receives,  or  permits  to  be  received,  on  board  the 
vessel  to  which  he  is  attached,  any  goods  or  merchandise,  for  freight, 
sale,  or  traffic,  except  gold,  silver,  or  jewels,  for  freight  or  safe  keep- 
ing;  or  demands  or  receives  any  compensation  for  the  receipt  or 
transportation  of  any  other  article  than  gold,  silver,  or  jewels,  with- 
out authority  *  from  the  President  or  Secretary  of  the  Navy; 

14.  Or  knowingly  makes  or  signs,  or  aids,  abets,  directs,  or  pro- 
cures the  making  or  signing  of,  any  false  muster; 

15.  Or  wastes  any  ammunition,  provisions,  or  other  public  prop- 
erty, or,  having  power  to  prevent  it,  knowingly  permits  such  waste ; 

16.  Or,  when  on  shore,  plunders,  abuses,  or  maltreats  any  inhab- 
itant or  injures  his  property  in  any  way; 

17.  Or  refuses,  or  fails  to  use,  his  utmost  exertions  to  detect,  appre- 
hend, and  bring  to  punishment  all  offenders,  or  to  aid  all  persons 
appointed  for  that  purpose; 

18.  Or,  when  rated  or  acting  as  master-at-arms,  refuses  to  receive 
such  prisoners  as  may  be  committed  to  his  charge,  or,  having  re- 
ceived  them,   suffers  them   to   escape,   or  dismisses  -  them  without 
orders  from  the  proper  authority; 

19.  Or  is  absent  from  his  station  or  duty  without  leave,  or  after 
his  leave  has  expired ; 

20.  Or  violates  or  refuses  obedience  to  any  lawful  general  order 
or  regulation  issued  by  the  Secretary  of  the  Navy ; 

21.  Or,  in  time  of  peace,  deserts  or  attempts  to  desert,  or  aids 
and  entices  others  to  desert ; 

22.  Or  receives  or  entertains  any  deserter  from  any  other  vessel 
of  the  Navy,  knowing  him  to  be  such,  and  does  not,  with  all  con- 
venient speed,  give  notice  of  such  deserter  to  the  commander  of  the 
vessel  to  which  he  belongs,  or  to  the  commander  in  chief,  or  to  the 
commander  of  the  squadron. 


30  INSTRUCTIONS  FOR  COURTS  AND  BOARDS. 

ARTICLE  9. 

Any  officer  who  absents  himself  from  his  command  without  leave 
may,  by  the  sentence  of  a  court-martial,  be  reduced  to  the  rating  of 
an  ordinary  seaman. 

ARTICLE  10. 

' 

Any  commissioned  officer  of  the  Navy  or  Marine  Corps  who,  hav- 
ing tendered  his  resignation,  quits  his  post  or  proper  duties  without 
leave  and  with  intent  to  remain  permanently  absent  therefrom, 
prior  to  due  notice  of  the  acceptance  of  such  resignation,  shall  be 
deemed  and  punished  as  a  deserter. 


ARTICLE  11. 


No  person  in  the  naval  service  shall  procure  stores  or  other  arti- 
cles or  supplies  for,  and  dispose  thereof  to,  the  officers  or  enlisted 
men  on  vessels  of  the  Navy,  or  at  navy  yards  or  naval  stations,  for 

his  own  account  or  benefit. 

• 

ARTICLE   12. 


No  person  connected  with  the  Navy  shall,  under  any  pretense, 
iport  i 
of  duty. 


import  in  a  public  vessel  any  article  which  is  liable  to  the  payment 


ARTICLE   13. 

Distilled  spirits  shall  be  admitted  on  board  of  vessels  of  war  only 
upon  the  order  and  under  the  control  of  the  medical  officers  of  such 
vessels,  and  to  be  used  only  for  medical  purposes. 

ARTICLE   14. 

Fine  and  imprisonment,  or  such  other  punishment  as  a  court- 
martial  may  adjudge,  shall  be  inflicted  upon  any  person  in  the 
naval  service  of  the  United  States — 

1.  Who  presents  or  causes  to  be  presented  to  any  person  in  the 
civil,  military,  or  naval  service  thereof,  for  approval  or  payment,  any 
claim  against  the  United  States  or  any  officer  thereof,  knowing  such 
claim  to  be  false  or  fraudulent ;  or 

2.  Who  enters  into  any  agreement  or  conspiracy  to  defraud  the 
United  States  by  obtaining,  or  aiding  others  to  obtain,  the  allow- 
ance or  payment  of  any  false  or  fraudulent  claim ;  or 

3.  Who,  for  the  purpose  of  obtaining,  or  aiding  others  to  obtain, 
the  approval,  allowance,  or  payment  of  any  claim  against  the  United 
States  or  against  any  officer  thereof,  makes  or  uses,  or  procures  or 
advises  the  making  or  use  of,  any  writing,  or  other  paper,  knowing 
the  same  to  contain  any  false  or  fraudulent  statement ;  or 


INSTRUCTIONS  FOR   COURTS  AND  BOARDS.  31 

4.  Who,  for  the  purpose  of  obtaining,  or  aiding  others  to  obtain, 
the  approval,  allowance,  or  payment  of  any  claim  against  the  United 
States  or  any  officer  thereof,  makes,  or  procures  or  advises  the  mak- 
ing of,  any  oath  to  any  fact  or  to  any  writing  or  other  paper,  know- 
ing such  oath  to  be  false;  or 

5.  Who,  for  the  purpose  of  obtaining,  or  aiding  others  to  obtain, 
the  approval,  allowance,  or  payment  of  any  claim  against  the  United 
States  or  any  officer  thereof,  forges  or  counterfeits,  or  procures  or 
advises  the  forging  or  counterfeiting  of,  any  signature  upon  any 
writing  or  other  paper,  or  uses,  or  procures  or  advises  the  use  of,  any 
such  signature,  knowing  the  same  to  be  forged  or  counterfeited;  or 

6.  Who,  having  charge,  possession,  custody,  or  control   of  any 
money  or  other  property  of  the  United  States,  furnished  or  intended 
for  the  naval  service  thereof,  knowingly  delivers,  or  causes  to  be 
delivered,  to  any  person  having  authority  to  receive  the  same,  any 
amount  thereof  less  than  that  for  which  he  receives  a  certificate  or 
receipt;  or 

7.  Who,  being  authorized  to  make  or  deliver  any  paper  certifying 
the  receipt  of  any  money  or  other  property  of  the  United  States, 
furnished   or   intended   for   the   naval   service   thereof,   makes,   or 
delivers  to  any  person,  such  writing,  without  having  full  knowledge 
of  the  truth  of  the  statements  therein  contained,  and  with  intent 
to  defraud  the  United  States ;  or 

8.  Who  steals,  embezzles,  knowingly  and  willfully  misappropri- 
ates, applies  to  his  own  use  or  benefit,  or  wrongfully  and  knowingly 
sells  or  disposes  of  any  ordnance,  arms,  equipments,  ammunition, 
clothing,  subsistence  stores,  money  or  other  property  of  the  United 
States,   furnished  or  intended   for  the  military   or  naval   service 
thereof;  or 

9.  Who  knowingly  purchases,  or  receives  in  pledge  for  any  obliga- 
tion or  indebtedness,  from  any  other  person  who  is  a  part  of  or  em- 
ployed in  said  service,  any  ordnance,  arms,  equipments,  ammunition, 
clothing,  subsistence  stores,  or  other  property  of  the  United  States, 
such  other  person  not  having  lawful  right  to  sell  or  pledge  the 
same;  or 

10.  Who   executes,   attempts,   or   countenances   any   other   fraud 
against  the  United  States. 

And  if  any  person,  being  guilty  of  any  of  the  offenses  described  in 
this  article  while  in  the  naval  service,  receives  his  discharge,  or  is 
dismissed  from  the  service,  he  shall  continue  to  be  liable  to  be  arrested 
and  held  for  trial  and  sentence  by  a  court-martial,  in  the  same 
manner  and  to  the  same  extent  as  if  he  had  nqt  received  such  dis- 
charge nor  been  dismissed. 

' 


32  INSTRUCTIONS  FOR  COURTS  AND  BOARDS, 

AliTICI.K     IT.. 

(Repealed  by  section  1:>,  ol  the  su-t  of  March  3,  1899.) 

• 

ARTICLE    10. 

No  person  in  the  Navy  shall  take  out  of  a  prize,  or  vessel  seized 
.  as  a  prize,  any  money,  plate,  goods,  or  any  part  of  her  equipment, 
unless  it  be  for  the  better  preservation  thereof,  or  unless  such  articles 
are  absolutely  needed  for  the  use  of  any  of  the  vessels  or  armed 
forces,  of  the  United  States,  before  the  same  are  adjudged  lawful 
prize  by  a  competent  court;  but  the  whole,  without  fraud,  conceal- 
ment, or  embezzlement,  shall  be  brought  in,  in  order  that  judgment 
may  be  passed  thereon;  and  every  person  who  offends  against  this 
article  shall  be  punished  as  a  court-martial  may  direct. 
. 

ARTICLE    17. 

If  any  person  in  the  Navy  strips  off  the  clothes  of,  or  pillages,  or 
in  any  manner  maltreats,  any  person  taken  on  board  a  prize,  he  shall 
suffer  such  punishment  as  a  court-martial  may  adjudge. 

ARTICLE  is. 

If  any  officer  or  person  in  the  naval  service  employs  any  of  the 
forces  under,  his  command  for  the  purpose  of  returning  any  fugi- 
tive from  service  or  labor,  he  shall  be  dismissed  from  the  service. 

• 

ARTICLE    19. 

Any  officer  who  knowingly  enlists  into  the  naval  service  any  per- 
son who  has  deserted  in  time  of  war  from  the  naval  or  military 
service  of  the  United  States,  or  any  insane  or  intoxicated  person, 
or  any  minor  between  the  ages  of  fourteen  and  eighteen  years,  with- 
out the  consent  of  his  parents  or  guardian,  or  any  minor  under  the 
age  of  fourteen  years,  shall  be  punished  as  a.  court-martial  may  direct. 

(This  article  was  specifically  amended  as  above  given  by  the  act  of  August  22,  1912 
(.°,7  Stat.,  356).) 

ARTICLE    20. 

Every  commanding  officer  of  a  vessel  in  the  Navj^  shall  obey  the 
following  rules: 

1.  Whenever  a  man  enters  on  board,  the  commanding  officer  shall 
cause  an  accurate  entry  to  be  made  in  the  ship's  books,  showing  his 
name,  the  date,  place,  and  term  of  his  enlistment,  the  place  or  vessel 
from  which  he  was  received  on  board,  his  rating,  his  descriptive 
list,  his  age,  place  of  birth,  and  citizenship,  with  such  remarks  as 
may  be  necessary. 


INSTRUCTIONS  FOR   COURTS  AND  BOARDS.  33 

2.  He  shall,  before  sailing,  transmit  to  the  Secretary  of  the  Navy 
a  complete  list  of  the  rated  men  under  his  command,  showing  the 
particulars  set  forth  in  rule  one,  and  a  list  of  officers  and  passen- 
gers, showing  the  date  of  their  entering.    And  he  shall  cause  similar 
lists  to  be  made  out  on  the  first  day  of  every  third  month  and  trans- 
mitted to  the  Secretary  of  the  Navy  as  opportunities  occur,  account- 
ing therein  for  any  casualty  which  may  have  happened  since  the 
last  list. 

3.  He  shall  cause  to  be  accurately  minuted  on  the  ship's  books  the 
names  of  any  persons  dying  or  deserting,  and  the  times  at  which  such 
death  or  desertion  occurs. 

4.  In  case  of  the  death  of  any  officer,  man,  or  passenger  on  said 
vessel,  he  shall  take  care  that  the  paymaster  secures  all  the  property 
of  the  deceased,  for  the  benefit  of  his  legal  representatives. 

5.  He  shall  not  receive  on  board  any  man  transferred  from  any 
other  vessel  or  station  to  him,  unless  such  man  is  furnished  with  an 
account,  signed  by  the  captain  and  paymaster  of  the  vessel  or  station 
from  which  he  came,  specifying  the  date  of  his  entry  on  said  vessel 
or  at  said  station,  the  period  and  term  of  his  service,  the  sums  paid 
him,  the  balance  due  him,  the  quality  in  which  he  was  rated,  and  his 
descriptive  list. 

6.  He  shall,  whenever  officers  or  men  are  sent  from  his  ship,  for 
whatever  cause,  take  care  that  each  man  is  furnished  with  a  complete 
statement  of  his  account,  specifying  the  date  of  his  enlistment,  the 
period  and  term  of  his  service,  and  his  descriptive  list.    Said  account 
shall  be  signed  by  the  commanding  officer  and  paymaster. 

7.  He  shall  cause  frequent  inspections  to  be  made  into  the  condi- 
tion of  the  provisions  on  his  ship,  and  use  every  precaution  for  their 
preservation. 

8.  He  shall  frequently  consult  with  the  surgeon  in  regard  to  the 
sanitary  condition  of  his  crew,  and  shall  use  all  proper  means  to 
preserve  their  health.    And  he  shall  cause  a  convenient  place  to  be 
set  apart  for  sick  or  disabled  men,  to  which  he  shall  have  them 
removed,  with  their  hammocks  and  bedding,  when  the  surgeon  so 
advises,  and  shall  direct  that  some  of  the  crew  attend  them  and  keep 
the  place  clean. 

9.  He  shall  attend  in  person,  or  appoint  a  proper  officer  to  attend, 
when  his  crew  is  finally  paid  off,  to  see  that  justice  is  done  to  the 
men  and  to  the  United  States  in  the  settlement  of  the  accounts. 

10.  He  shall  cause  the  articles  for  the  government  of  the  Navy 
to  be  hung  up  in  some  public  part  of  the  ship  and  read  once  a  month 
to  his  ship's  company. 

Every  commanding  officer  who  offends  against  the  provisions  of 
this  article  shall  be  punished  as  a  court-martial  may  direct. 


34  INSTRUCTIONS  FOR   COURTS   AND  BOARDS. 

ARTICLE  21. 

. 

When  the  crew  of  any  vessel  of  the  United  States  are  separated 
from  their  vessel  by  means  of  her  wreck,  loss,  or  destruction,  all  the 
command  and  authority  given. to  the  officers  of  such  vessel  shall 
remain  in  full  force  until  such  ship's  company  shall  be  regularly 
discharged  from  or  ordered  again  into  service,  or  until  a  court-martial 
or  court  of  inquiry  shall  be  held  to  inquire  into  the  loss  of  said  vessel. 
And  if  any  officer  or  man,  after  such  wreck,  loss,  or  destruction,  acts 
contrary  to  the  discipline  of  the  Navy,  he  shall  be  punished  as  a 
court-martial  may  direct. 

ARTICLE    22. 

All  offenses  committed  by  persons  belonging  to  the  Navy  which 
are  not  specified  in  the  foregoing  articles  shall  be  punished  as  a  court- 
martial  may  direct. 

(Act  of  March  3,  1893  (27  Stat,  716),  provides  that  "Fraudulent 
enlistment,  and  the  receipt  of  any  pay  or  allowance  thereunder,  is 
hereby  declared  an  offense  against  naval  discipline  and  made  punish- 
able by  general  court-martial,  under  article  twenty-two  of  the  articles 
for  the  government  of  the  Navy.") 

ARTICLE  23. 

All  offenses  committed  by  persons  belonging  to  the  Navy  while 
on  shore  shall  be  punished  in  the  same  manner  as  if  they  had  been 
committed  at  sea. 

ARTICLE  24. 

No  commander  of  a  vessel  shall  inflict  upon  a  commissioned  or 
warrant  officer  any  other  punishment  than  private  reprimand,  sus- 
pension from  duty,  arrest,  or  confinement,  and  such  suspension, 
arrest,  or  confinement  shall  not  continue  longer  than  ten  days,  unless 
a  further  period  is  necessary  to  bring  the  offender  to  trial  by  a  court- 
martial  ;  nor  shall  he  inflict,  or  cause  to  be  inflicted,  upon  any  petty 
officer,  or  person  of  inferior  rating,  or  marine,  for  a  single  offense,  or 
at  any  one  time,  any  other  than  one  of  the  following  punishments, 
'namely : 

1.  Reduction  of  any  rating  established  by  himself. 

2.  Confinement,  with  or  without  irons,  single  or  double,  not  ex- 
ceeding ten  days,  unless  further  confinement  be  necessary  in  the  case 
of  a  prisoner  to  be  tried  by  court-martial. 

3.  Solitary  confinement,  on  bread  and  water,  not  exceeding  five 
days. 

4.  Solitary  confinement  not  exceeding  seven  days. 

5.  Deprivation  of  liberty  on  shore. 

6.  Extra  duties. 


INSTRUCTIONS  FOB  COURTS  AND  BOARDS.  35 

No  other  punishment  shall  be  permitted  on  board  of  vessels  belong- 
ing to  the  Navy,  except  by  sentence  of  a  general  or  summary  court- 
martial.1  All  punishments  inflicted  by  the  commander,  or  by  his 
order,  except  reprimands,  shall  be  fully  entered  upon  the  ship's  log. 

(Act  of  August  29,  1916,  provides  that  "  Hereafter  all  officers  of 
the  Navy  and  Marine  Corps  who  are  authorized  to  order  either  gen- 
eral or  summary  courts-martial  *  *  *  shall  have  the  same  au- 
thority to  inflict  minor  punishments  as  is  conferred  by  law  upon  the 
commander  of  a  naval  vessel.  *  *  * 

"  When  a  force  of  marines  is  embarked  on  a  naval  vessel,  or  vessels, 
as  a  separate  organization,  not  a  part  of  the  authorized  complement 
thereof,  the  authority  and  powers  of  the  officers  of  such  separate 
organization  of  marines  shall  be  the  same  as  though  such  organiza- 
tion were  serving  at  a  navy  yard  on  shore,2  but  nothing  herein  shall 
be  construed  as  impairing  the  paramount  authority  of  the  command- 
ing officer  of  any  naval  vessel  over  the  vessel  under  his  command  and 
all  persons  embarked  thereon." 

Act  of  May  13,  1908  (35  Stat,  132),  provides  "That  the  use  of 
irons,  single  or  double,  as  a  form  of  punishment  in  the  Navy  of  the 
United  States  is  hereby  abolished,  except  for  the  purposes  of  safe 
custody  or  when  part  of  the  sentence  imposed  by  a  general  court- 
martial.") 

ARTICLE   25. 

No  officer  who  may  command  by  accident,  or  in  the  absence  of  the 
commanding  officer,  except  when  such  commanding  officer  is  absent 
for  a  time  by  leave,  shall  inflict  any  other  punishment  than  confine- 
ment. 

ARTICLE   26. 

Summary  courts-martial  may  be  ordered  upon  petty  officers  and 
persons  of  inferior  ratings,  by  the  commander  of  any  vessel,  or  by 
the  commandant  of  any  navy  yard,  naval  station,  or  marine  barracks 
to  which  they  belong,  for  the  trial, of  offenses  which  such  officer  may 
deem  deserving  of  greater  punishment  than  such  commander  or 
commandant  is  authorized  to  inflict,  but  not  sufficient  to  require  trial 
by  a  general  court-martial. 

(Act  of  August  29,  1916,  provides  that  "  Summary  courts-martial 
may  be  ordered  upon  enlisted  men  in  the  naval  service  under  his 
command  by  the  commanding  officer  of  any  brigade,  regiment,  or 
separate  or  detached  battalion,  or  other  separate  or  detached  com- 
mand, and,  when  empowered  by  the  Secretary  of  the  Navy,  by  the 

1  Or  Deck  Court.     See  act  of  February  16,  1909,  page  45. 

2  The  commanding  officer  of  marines  at  a  navy  yard  or  barracks  is  clothed  with  the 
same  authority  for  the  purpose  of  enforcing  discipline  among  the  officers  and  men  under 
his  command  as  that  which  rests,  for  similar  purposes,  in  the  commanding  officer  of  a 
vessel.     R-4182    (1). 


36  INSTRUCTIONS  FOR  COURTS  AND  BOARDS. 

commanding  oilicer  or  officer  in  charge  of  any  command  not  specifi- 
cally mentioned  in  the  foregoing:  Provided,  That  when  so  empow- 
ered by  the  Secretary  of  the  Xavy  to  order  summary  courts-martial, 
the  commanding  officer  of  a  naval  hospital  or  hospital  ship  shall  be 
empowered  to  order  such  courts  and  deck  courts,  and  inflict  the  pun- 
ishments which  the  commander  of  a  naval  vessel  is  authorized  by 
law  to  inflict,  upon  all  enlisted  men  of  the  naval  service  attached 
thereto,  whether  for  duty  or  as  patients.'') 

AKTICLK    27. 

A  summary  court-martial  sha'll  consist  of  three  officers  not  below 
the  rank  of  ensign,  as  members,  and  of  a  recorder.  The  commander 
of  a  ship  may  order  any  officer  under  his  command  to  act  as  such 
recorder. 

ARTICLE    28. 

m 

Before  proceeding  to  trial  the  members  of  a  summary  court- 
martial  shall  take  the  following  oath  or  affirmation,  which  shall  be 
administered  by  the  recorder:  "I,  A  B,  do  swear  (or  affirm)  that  I 
will  well  and  truly  try,  without  prejudice  or  partiality,  the  case  now 
depending,  according  to  the  evidence  which  shall  be  adduced,  the 
laws  for  the  government  of  the  Navy,  and  my  own  conscience." 
After  which  the  recorder  of  the  court  shall  take  the  following  oath 
or  affirmation,  which  shall  be  administered  by  the  senior  member  of 
the  court :  "  I,  A  B,  do  swear  (or  affirm)  that  I  will  keep  a  true  record 
of  the  evidence  which  shall  be  given  before  this  court  and  of  the 
proceedings  thereof." 

ARTICLE   29. 

All  testimony  before  a  summary  court-martial  shall  be  given  orally, 
upon  oath  or  affirmation,  administered  by  the  senior  member  of  the 
court. 

(Act  of  February  16.  1909,  section  16  (35  Stat.,  622),  provides 
"  That  the  depositions  of  witnesses  may  be  taken  on  reasonable  notice 
to  the  opposite  party  and,  when  duly  authenticated,  may  be  put  in 
evidence  before  naval  courts,  except  in  capital  cases  and  cases  where 
the  punishment  may  be  imprisonment  or  confinement  for  more  than 
one  year,  as  follows:  First,  depositions  of  civilian  witnesses  residing 
outside  the  State,  Territory,  or  District  in  which  a  naval  court  is 
ordered  to  sit;  second,  depositions  of  persons  in  the  naval  or  mili- 
tary service  stationed  or  residing  outside  the  State,  Territory,  or 
District  in  which  a  naval  court  is  ordered  to  sit,  or  who  are  under 
orders  to  go  outside  of  such  State,  Territory,  or  District ;  third,  where 
such  naval  court  is  convened  on  board  a  vessel  of  the  United  States, 
or  at  a  naval  station  not  within  any  State,  Territory,  or  District  of 
the  United  States,  the  depositions  of  witnesses  may  be  taken  and 


INSTRUCTIONS  FOR  COURTS  AND  BOARDS.  37 

used  as  herein  provided  Avhenever  such  \vitnesses  reside  or  are  sta- 
tioned at  such  a  distance  from  the  place  where  said  naval  court  is 
ordered  to  sit,  or  are  about  to  go  to  such  a  distance  as,  in  the  judg- 
ment of  the  convening  authority,  would  render  it  impracticable  to 
secure  their  personal  attendance." 

A  decision  of  the  Secretary  of  the  Navy  (file  26287-833,  June  29, 
11)11)  holds: 

In  article  29  of  the  Articles  for  the  Government  of  the  Navy,  "  testimony  " 
must  be  considered  as  used  in  an  accurate  legal  sense,  as  meaning  "  that  which 
comes  to  the  tribunal  through  living  witnesses  under  oath  "  [Cyclopedia  of  Law 
and  Procedure  (v.  16,  p.  849)]  ;  and  in  enacting  this  law  Congress  must  be  pre- 
sumed to  have  understood  the  legal  distinction  between  the  terms  ["  testimony  " 
and  the  generic  term  "evidence"]. 

The  phraseology  of  article  29,  A.  G.  N.,  does  not  forbid  expressly  or  impliedly 
the  production  of  other  evidence  than  "oral  testimony";  it  merely  provides 
that  all  "  testimony  "  shall  be  given  viva  voce  and  upon  oath  or  affirmation,  thus 
excluding  mere  declarations  or  depositions.  [See  seel  ion  1(5  of  aet  of  February 
1C,  1909,  quoted  above,  which  authorizes  the  use  of  depositions  in  certain  cases.] 
The  article  in  question  does  not  forbid  the  introduction  of  other  forms  of  legal 
evidence,  including  documentary  evidence  and  real  evidence.) 

ARTICLE   30. 

Summary  courts-martial  may  sentence  petty  officers  and  persons 
of  inferior  ratings  to  any  one  of  the  following  punishments,  namely : 

1.  Discharge  from  the  service  with  bad-conduct  discharge;   but 
the  sentence  shall  not  be  carried  into  effect  in  a  foreign  country. 

2.  Solitary  confinement,  not  exceeding  thirty  days,  in  irons,  single 
or  double,  on  bread  and  water,  or  on  diminished  rations. 

3.  Solitary  confinement  in  irons,  single  or  double,  not  exceeding 
thirty  days. 

.4.  Solitary  confinement  not  exceeding  thirty  days. 

5.  Confinement  not  exceeding  two  months. 

6.  Reduction  to  next  inferior  rating. 

7.  Deprivation  of  liberty  on  shore  on  foreign  station. 

8.  Extra  police  duties,  and  loss  of  pay,  not  to  exceed  three  months, 
may  be  added  to  any  of  the  above-mentioned  punishments. 

(Act  of  February  16,  1909,  section  8,  provides:  "That  the  courts 
authorized  to  impose  the  punishments  prescribed  by  article  thirty  of 
the  'Articles  for  the  Government  of  the  Navy '  may  adjudge  either  a 
part  or  the  whole  as  may  be  appropriate,  of  any  one  of  the  punish- 
ments therein  enumerated:  Provided,  That  the  use  of  irons,  single  or 
double,  is  hereby  abolished  except  for  the  purpose  of  safe  custody  or 
when  part  of  a  sentence  imposed  by  a  general  court-martial/1) 

AKTICLE    31. 

A  summary  court-martial  may  disrate  any  rated  person  for  incom- 
petency. 

.' 


38  INSTRUCTIONS  FOR  COURTS  AND  BOARDS. 

ARTICLE    32. 

No  sentence  of  a  summary  court-martial  shall  be  carried  into 
execution  until  the  proceedings  and  sentence  have  been  approved 
by  the  officer  ordering  the  court  and  by  the  commander-in-chief, 
or,  in  his  absence,  by  the  senior  officer  present.  And  no  sentence 
of  such  court  which  involves  loss  of  pay  shall  be  carried  into  exe- 
cution until  the  proceedings  and  sentence  have  been  approved  by 
the  Secretary  of  the  Navy. 

(Act  of  February  16, 1909,  section  17,  provides  "That  all  sentences 
of  summary  courts-martial  may  be  carried  into  effect  upon  the  ap- 
proval of  the  senior  officer  present,  *  *  *." 

.Act  of  August  29,  1916,  provides  that  "No  sentence  of  a  summary 
court-martial  shall  be  carried  into  execution  until  the  proceedings 
and  sentence  have  been  approved  by  the  officer  ordering  the  court, 
or  his  successor  in  office,  and  by  his  immediate  superior  in  command : 
Provided,  That  if  the  officer  ordering  the  court,  or  his  successor  in 
office,  be  the  senior  officer  present,  such  sentence  may  be  carried  into 
execution  upon  his  approval  thereof.") 

ARTICLE    33. 

The  officer  ordering  a  summary  court-martial  shall  have  power 
to  remit,  in  part  or  altogether,  but  not  to  commute,  the  sentence 
of  the  court.  And  it  shall  be  his  duty  either  to  remit  any  part  or 
the  whole  of  any  sentence,  the  execution  of  which  would,  in  the 
opinion  of  the  surgeon  or  senior  medical  officer  on  board,  given  in 
writing,  produce  serious  injury  to  the  health  of  the  person  sentenced, 
or  to  submit  the  case  again,  without  delay,  to  the  same  or  to  another 
summary  court-martial,  which  shall  have  power,  upon  the  testimony 
already  taken,  to  remit  the  former  punishment  and'  to  assign  some 
other  of  the  authorized  punishments  in  the  place  thereof. 

(Act  of  February  16,  1909,  section  9,  provides  "  That  the  Secre- 
tary of  the  Navy  may  set  aside  the  proceedings  or  remit  or  mitigate 
in  whole  or  in  part,  the  sentence  imposed  by  any  naval  court-martial 
convened  by  his  order  or  by  that  of  any  officer  of  the  Navy  or  Marine 
Corps.") 

ARTICLE  34. 

The  proceedings  of  summary  courts  shall  be  conducted  with  as 
much  conciseness  and  precision  as  may  be  consistent  writh  the  ends 
of  justice  and  under  such  forms  and  rules  as  may  be  prescribed  by 
the  Secretary  of  the  Navy,  with  the  approval  of  the  President,  and 
all  such  proceedings  shall  be  transmitted  in  the  usual  mode  to  the 
Navy  Department,  where  they  shall  be  kept  on  file  for  a  period  of 
two  years  from  date  of  trial,  after  which  time  they  may  be  destroyed 
in  the  discretion  of  the  Secretary  of  the  Navy. 

(This  article  was  specifically  amended  as  above  given  by  the  Act  of  February 
16,  1909,  section  14.) 


INSTRUCTIONS  FOR  COURTS  AND  BOARDS.  39 

ARTICLE   35. 

Any  punishment  which  a  summary  court-martial  is  authorized 
to  inflict  may  be  inflicted  by  a  general  court-martial. 

ARTICLE  36. 

No  officer  shall  be  dismissed  from  the  naval  service  except  by  the 
order  of  the  President  or  by  sentence  of  a  general  court-martial ;  and 
in  time  of  peace  no  officer  shall  be  dismissed  except  in  pursuance  of 
the  sentence  of  a  general  court-martial  or  in  mitigation  thereof. 

ARTICLE  37. 

When  any  officer,  •  dismissed  by  order  of  the  President  since  3d 
March.  1865,  makes,  in  writing,  an  application  for  trial,  setting 
forth,  under  oath  that  he  has  been  wrongfully  dismissed,  the  Presi- 
dent shall,  as  soon  as  the  necessities  of  the  service  may  permit,  con- 
vene a  court-martial  to  try  such  officer  on  the  charges  on  which  he 
shall  have  been  dismissed.  And  if  such  court-martial  shall  not  be 
convened  within  six  months  from  the  presentation  of  such  applica- 
tion for  trial,  or  if  such  court,  being  convened,  shall  not  award  dis- 
missal or  death  as  the  punishment  of  such  officer,  the  order  of  dis- 
missal by  the  President  shall  be  void. 

ARTICLE  38. 

General  courts-martial  may  be  convened  by  the  President,  the 
Secretary  of  the  Navy,  or  the  commander-in-chief  of  a  fleet  or 
squadron;  but  no  commander  of  a  fleet  or  squadron  in  the  waters 
of  the  United  States  shall  convene  such  court  without  express  au- 
thority from  the  President. 

(Act  of  February  16,  1909,  section  10,  provides  "  That  general 
courts-martial  may  be  convened  by  the  President,  by  the  Secretary 
of  the  Navy,  by  the  commander  in  chief  of  a  fleet  or  squadron,  and 
by  the  commanding  officer  of  any  naval  station  beyond  the  conti- 
nental limits  of  the  United  States." 

Act  of  August  29,  1916,  provides  that  a  When  empowered  by  the 
Secretary  of  the  Navy,  general  courts-martial  may  be  convened  by 
the  commanding  officer  of  a  squadron,  of  a  division,  of  a  flotilla,  or  of 
a  larger  naval  force  afloat,  and  of  a  brigade  or  larger  force  of  the 
naval  service  on  shore  beyond  the  continental  limits  of  the  United 
States :  Provided,  That  in  time  of  war,  if  then  so  empowered  by  the 
Secretary  of  the  Navy,  general  courts-martial  may  be  convened  by 
the  commandant  of  any  navy  yard  or  naval  station,  and  by  the  com- 
manding officer  of  a  brigade  or  larger  force  of  the  Navy  or  Marine 
Corps  on  shore  not  attached  to  a  navy  yard  or  naval  station.") 


40  INSTRUCTIONS   FOR   COURTS  AND  BOARDS. 

ARTICLE    39. 

J±  general  court-martial  shall  consist  of  not  more  than  thirteen 
nor  less  than  five  commissioned  officers  as  members;  and  as  many 
officers,  not  exceeding  thirteen,  as  can  be  convened  without  injury 
to  the  service,  shall  be  summoned  on  every  such  court.  But  in  no 
case,  where  it  can  be  avoided  without  injury  to  the  service,  shall 
more  than  one-half,  exclusive  of  the  president,  be  junior  to  the 
officer  to  be  tried.  The  senior  officer  shall  always  preside  and  the 
others  shall  take  place  according  to  their  rank. 

ARTICLE   40. 

The  president  of  the  general  court-martial  shall  administer  the 
following  oath  or  affirmation  to  the  judge  advocate  or  person 
officiating  as  such : 

"  I,  A  B,  do  swear  (or  affirm)  that  I  will  keep  a  true  record  of  the 
evidence  given  to  and  the  proceedings  of  this  court;  that  I  will 
not  divulge  or  by  any  means  disclose  the  sentence  of  the  court  until 
it  shall  have  been  approved  by  the  proper  authority;  and  that  I 
AY  ill  not  at  any  time  divulge  or  disclose  the  vote  or  opinion  of  any 
particular  member  of  the  court,  unless  required  so  to  do  before  a 
court  of  justice  in  due  course  of  law." 

This  oath  or  affirmation  being  duly  administered,  each  member 
of  the  court,  before  proceeding  to  trial,  shall  take  the  following 
oath  or  affirmation,  which  shall  be  administered  by  the  jtidge 
advocate  or  person  officiating  as  such : 

"  1,  A.  B.  do  swear  (or  affirm)  that  I  will  truly  try  without  preju- 
dice or  partiality,  the  case  now  depending,  according  to  the  evidence 
which  shall  come  before  the  court,  the  rules  for  the  government  of 
the  Navy,  and  my  own  conscience;  that  I  will  not  by  any  means 
divulge  or  disclose  the  sentence  of  the  court  until  it  shall  have  been 
approved  by  the  proper  authority;  and  that  I  will  not  at  any  time 
divulge  or  disclose  the  vote  or  opinion  of  any  particular  member  of 
the  court,  unless  required  so  to  do  before  a  court  of  justice  in  due 
course  of  law." 

ARTICLE   41. 


An  oath  or  affirmation  in  the  following  form  shall  be  administered 
to 'all  witnesses,  before  any  court-martial,  by  the  president  thereof: 

"You  do  solemnly  swear  (or  affirm)  that  the  evidence  you  shall 
give  in  the  case  now  before  this  court  shall  be  the  truth,  the  whole 
truth,  and  nothing  but  the  truth,  and  that  you  will  state  everything 
within  your  knowledge  in  relation  to  the  charges.  So  help  you  God 
(or, 4  this  you  do  under  the  pains  and  penalties  of  perjury  ')." 


INSTRUCTIONS   FOR  COURTS  AND  BOARDS.  41 

ARTICLE   42. 

Whenever  any  person  refuses  to  give  his  evidence  or  to  give  it  in 
the  manner  provided  by  these  articles,  or  prevaricates,  or  beha'ves 
with  contempt  to  the  court,  it  shall  be  lawful  for  the  court  to  im- 
prison him  for  any  time  not  exceeding  two  months. 

(Act  of  February  16,  1909,  sections  11  and  12,  provides  "  That  a 
naval  court-martial  or  court  of  inquiry  shall  have  power  to  issue  like 
process  to  compel  witnesses  to  appear  and  testify  which  United 
States  courts  of  criminal  jurisdiction  .within  the  State,  Territory, 
or  District  where  such  naval  court  shall  be  ordered  to  sit  may  law- 
fully issue. 

"  That  any  person  duly  subpoenaed  to  appear  as  a  witness  before  a 
general  court-martial  or  court  of  inquiry  of  the  Navy,  who  willfully 
neglects  or  refuses  to  appear,  or  refuses  to  qualify  as  a  witness  or  to 
testify  or  produce  documentary  evidence  which  such  person  may  have 
been  legally  subpoenaed  to  produce,  shall  be  deemed  guilty  of  a  mis- 
.demeanor,  for  which  such  person  shall  be  punished  on  information  in 
the  district  court  of  the  United  States;  and  it  shall  be  the  duty  of 
the  United  States  district  attorney,  011  the  certification  of  the  facts 
to  him  by  such  naval  court,  to  file  an  information  against  and  prose- 
cute the  person  so  offending,  and  the  punishment  of  such  person,  on 
conviction,  shall  be  a  fine  of  not  more  than  five  hundred  dollars  or 
imprisonment  not  to  exceed  six  months,  or  both,  at  the  discretion  of 
the  court:  Provided,  That  this  shall  not  apply  to  persons  residing 
beyond  the  State,  Territory,  or  District  in  which  such  naval  court  is 
held,  and  that  the  fees  of  such  witness  and  his  mileage  at  the  rates 
provided  for  witnesses  in  the  United1  States  district  court  for  the 
State,  Territory,  or  District  shall  be  duly  paid  or  tendered  said  wit- 
ness, such  amounts  to  be  paid  by  the  Bureau  of  Supplies  and  Ac- 
counts out  of  the  appropriation  for  compensation  of  witnesses :  Pro- 
vided further,  That  no  witness  shall  be  compelled  to  incriminate  him- 
self or  to  answer  any  question  which  may  tend  to  incriminate  or 
degrade  him.") 

(For  form  of  certificate  see  p.  381.) 


ARTICLE   43. 

The  person  accused  shall  be  furnished  with  -a  true  copy  of  the 
charges,  with  the  specifications,  at  the  time  he  is  put  under  arrest; 
and  no  other  charges  than  those  so  furnished  shall  be  urged  against 
him  at  the  trial,  unless  it  shall  appear  to  the  court  that  intelligence 
of  such  other  charge  had  not  reached  the  officer  ordering  the  court 
when  the  accused  was  put  under  arrest,  or  that  some  witness  mate- 
rial to  the  support  of  such  charge  was  at  that  time  absent  and  can 
be  produced  at  the  trial;  in  which  case  reasonable  time  shall  be 
given  to  the  accused  to  make  his  defense  against  such  new  charge. 

(See  note  under  sec.  42.) 


42  INSTRUCTIONS  FOE  COURTS  AND  BOARDS. 

ARTICLE   44. 

Every  officer  who  is  arrested  for  trial  shall  deliver  up  his  sword 
to  his  commanding  officer  and  confine  himself  to  the  limits  assigned 
him,  on  pain  of  dismissal  from  the  service. 

ARTICLE   45. 

When  the  proceedings  of  any  general  court-martial  have  com- 
menced, they  shall  not  be  suspended  or  delayed  on  account  of  the 
absence  of  any  of  the  members,  provided  five  or  more  are  assembled ; 
but  the  court  is  enjoined  to  sit  from  day  to  day,  Sundays  excepted, 
until  sentence  is  given,  unless  temporarily  adjourned  by  the  au- 
thority which  convened  it. 

ARTICLE  46. 

No  member  of  a  general  court-martial  shall,  after  the  proceedings 
are  begun,  absent  himself  therefrom,  except  in  case  of  sickness,  or  of 
an  order  to  go  on  duty  from  a  superior  officer,  on  pain  of  being   ' 
cashiered. 

ARTICLE   47. 

Whenever  any  member  of  a  court-martial,  from  any  legal  cause, 
is  absent  from  the  court  after  the  commencement  of  a  case,  all  the 
witnesses  who  have  been  examined  during  his  absence  must,  when 
he  is  ready  to  resume  his  seat,  be  recalled  by  the  court,  and  the 
recorded  testimony  of  each  witness  so  examined  must  be  read  over 
to  him,  and  such  witness  must  acknowledge  the  same  to  be  correct 
and  be  subject  to  such  further  examination  as  the  said  member  may 
require.  Without  a  compliance  with  this  rule,  and  an  entry  thereof 
upon  the  record,  a  member  who  shall  have  been  absent  during  the 
examination  of  a  witness  shall  not  be  allowed  to  sit  again  in  that 
particular  case. 

ARTICLE  48. 

Whenever  a  court-martial  sentences  an  officer  to  be  suspended,  it 
may  suspend  his  pay  and  emoluments  for  the  whole  or  any  part  of 
the  time  of  his  suspension. 

ARTICLE   49. 

- 

In  no  case  shall  punishment  by  flogging,  or  by  branding,  marking, 
or  tattooing  on  the  body  be  adjudged  by  any  court-martial  or  be 
inflicted  upon  any  person  in  the  Navy. 

ARTICLE  50. 

. 

No  person  shall  be  sentenced  by  a  court-martial  to  suffer  death, 
except  by  the  concurrence  of  two-thirds  of  the  members  present. 


INSTRUCTIONS  FOR  COURTS  AND  BOARDS.  43 

and  in  the  cases  where  such  punishment  is  expressly  provided  in 
these  articles.  All  other  sentences  may  be  determined  by  a  majority 
of  votes. 

ARTICLE  51. 

It  shall  be  the  duty  of  a  court-martial,  in  all  cases  of  conviction, 
to  adjudge  a  punishment  adequate  to  the  nature  of  the  offense;  but 
the  members  thereof  may  recommend  the  person  convicted  as  deserv- 
ing of  clemency,  and  state,  on  the  record,  their  reasons  for  so  doing. 

ARTICLE   52. 

The  judgment  of  every  court-martial  shall  be  authenticated  by  the 
signature  of  the  president,  and  of  every  member  who  may  be  present 
when  said  judgment  is  pronounced,  and  also  of  the  judge  advocate. 

ARTICLE  53. 

No  sentence  of  a  court-martial,  extending  to  the  loss  of  life,  or  to 
the  dismissal  of  a  commissioned  or  warrant  officer,  shall  be  carried 
into  execution  until  confirmed  by  the  President.  All  other  sentences 
of  a  general  court-martial  may  be  carried  into  execution  on  confirma- 
tion of  the  commander  of  the  fleet  or  officer  ordering  the  court. 


ARTICLE   54. 


Every  officer  who  is  authorized  to  convene  a  general  court-martial 
shall  have  power,  on  revision  of  its  proceedings,  to  remit  or  mitigate, 
but  not  to  commute,  the  sentence  of  any  such  court  which  he  is 
authorized  to  approve  and  confirm. 

( See  act  of  February  16,  1909,  section  9,  quoted  under  article  33,  A.  G.  N. ) 

ARTICLE  55. 

Courts  of  inquiry  may  be  ordered  by  the  President,  the  Secretary 
of  the  Navy,  or  the  commander  of  a  fleet  or  squadron. 

(Act  of  August  29,  1916,  provides  that  "  Courts  of  inquiry  may  be 
convened  by  any  officer  of  the  naval  service  authorized  by  law  to 
convene  general  courts-martial.") 

ARTICLE   56. 

A  court  of  inquiry  shall  consist  of  not  more  than  three  commis- 
sioned officers  as  members,  and  of  a  judge  advocate,  or  person  offi- 
ciating as  such. 

ARTICLE   57. 

Courts  of  inquiry  shall  have  power  to  summon  witnesses,  admin- 
ister oaths,  and  punish  contempts,  in  the  same  manner  as  courts- 
26450°— 17 4 


44  INSTRUCTIONS  FOR  COURTS  AND  BOARDS. 

martial;  but  they  shall  only  state  facts,  and  shall  not  give  their 
opinion,  unless  expressly  required  so  to  do  in  the  order  for  convening. 

(See  act  of  February  16,  1909,  sections  11  and  12,  quoted  under  article  42, 
A.  G.  N.) 

ARTICLE  58. 

The  judge  advocate,  or  person  officiating  as  such,  shall  administer 
to  the  members  the  following  oath  or  affirmation :  "  You  do  swear 
(or  affirm)  well  and  truly  to  examine  and  inquire,  according  to  the 
evidence,  into  the  matter  now  before  you,  without  partiality."  After 
which  the  president  shall  administer  to  the  judge  advocate,  or  person 
officiating  as  such,  the  following  oath  or  affirmation :  "  You  do  swear 
(or  affirm)  truly  to  record  the  proceedings  of  this  court  and  the 
evidence  to  be  given  in  the  case  in  hearing." 

ARTICLE    59. 

The  party  whose  conduct  shall  be  the  subject  of  inquiry,  or  his 
attorney,  shall  have  the  right  to  cross-examine  all  the  witnesses. 

ARTICLE    60. 

The  proceedings  of  courts  of  inquiry  shall  be  authenticated  by 
the  signature  of  the  president  of  the  court  and  of  the  judge  advo- 
cate, and  shall,  in  all  cases  not  capital,  nor  extending  to  the  dis- 
missal of  a  commissioned  or  warrant  officer,  be  evidence  before  a 
court-martial,  provided  oral  testimony  can  not  be  obtained. 

(For  construction  of  this  article  see  C.  M.  O.  46,  1&17.) 

ARTICLE    61. 

• 

No  person  shall  be  tried  by  court-martial  or  otherwise  punished 
ior  any  offense,  except  as  provided  in  the  following  article,  which 
appears  to  have  been  committed  more  than  two  years  before  the 
issuing  of  the  order  for  such  trial  or  punishment,  unless  by  reason 
of  having  absented  himself,  or  for  some  other  manifest  impediment, 
he  shall  not  have  been  amenable  to  justice  within  that  period. 

(This  article  was  specifically  added  by  the  act  of  February  25,  1895  (28  Stat., 
680).) 

ARTICLE    62. 

No  person  shall  be  tried  by  court-martial  or  otherwise  punished 
for  desertion  in  time  of  peace  committed  more  than  two  years  before 
the  issuing  of  the  order  for  such  trial  or  punishment,  unless  he  shall 
meanwhile  have  absented  himself  from  the  United  States  or  by 
reason  of  some  other  manifest  impediment  shall  not  have  been 
amenable  to  justice  within  that  period,  in  which  case  the  time  of 
his  absence  shall  be  excluded  in  computing  the  period  of  the  limi- 


INSTRUCTIONS  FOR   COURTS  AND  BOARDS.  45 

tation :  Provided,  That  said  limitation  shall  not  begin  until  the  end 
of  the  term  for  which  said  person  was  enlisted  in  the  service. 

(This  article  was  specifically  added  by  the  act  of  February  25,  1895  (28  Stat., 
680). 

ARTICLE    63. 

Whenever,  by  any  of  the  articles  for  the  government  of  the  Navy 
of  the  United  States,  the  punishment  on  conviction  of  an  offense 
is  left  to  the  discretion  of  the  court-martial,  the  punishment  there- 
for shall  not,  in  time  of  peace,  be  in  excess  of  a  limit  which  the 
President  may  prescribe. 

(See  Sec.  390.) 

(This  article  was  specifically  added  by  the  act  of  February  27,  1895  (28  Stat., 
689),) 

(See  note,  p.  86,  as  to  the  construction  of  "  officers  "  and  "  superior 
officers"  within  the  meaning  of  the  Articles  for  the  Government  of 
the  Navy.) 

The  act  of  February  16,  1909  (35  Stat.,  621),  sections  1  to  7, 
inclusive,  provides : 

SEC.  1.  "  That  courts  for  the  trial  of  enlisted  men  in  the  Navy  and 
Marine  Corps  for  minor  offenses  now  triable  by  summary  court- 
martial  may  be  ordered  by  the  commanding  officer  of  a  naval  vessel, 
by  the  commandant  of  a  navy  yard  or  station,  by  a  commanding 
officer  of  marines,  or  by  higher  naval  authority. 

(Act  of  August  29,  1916,  provides  that  "  Hereafter  all  officers  of 
the  Navy  and  Marine  Corps  who  are  authorized  to  order  either  gen- 
eral or  summary  courts-martial  may  order  deck  courts  upon  enlisted 
men  under  their  command,  *  *  *.") 

SEC.  2.  "  That  such  courts  shall  be  known  as '  deck  courts,'  and  shall 
consist  of  one  commissioned  officer  only,  who,  while  serving  in  such 
capacity,  shall  have  power  to  administer  oaths,  to  hear  and  de- 
termine cases,  and  to  impose,  in  whole  or  in  part,  the  punishments 
prescribed  by  article  thirty  of  the  Articles  for  the  Government  of  the 
Navy:1  Provided,  That  in  no  case  shall  such  courts  adjudge  dis- 
charge from  the  service  or  adjudge  confinement  or  forfeiture  of  pay 
for  a  longer  period  than  twenty  days. 

SEC.  3.  "  That  any  person  in  the  Navy  under  command  of  the  officer 
by  whose  order  a  deck  court  is  convened  may  be  detailed  to  act  as 
recorder  thereof. 

SEC.  4.  "  That  the  officer  within  whose  command  a  deck  court  is 
sitting  shall  have  full  power  as  reviewing  authority  to  remit  or  miti- 
gate, but  not  to  commute,  any  sentence  imposed  by  such  court ;  but  no 

1See  section  8  of  this  act,  quoted  iiijder  article  30,  A.  G,  Jf, 


46  INSTRUCTIONS  FOR  COURTS  AND  BOARDS. 

sentence  of  a  deck  court  shall  be  carried  into  effect  until  it  shall 
have  been  so  approved  or  mitigated,  and  such  officer  shall  have 
power  to  pardon  any  punishment  such  court  may  adjudge.2 

SEC.  5.  "  That  the  courts  hereby  authorized  shall  be  governed  in  all 
details  of  their  constitution,  powers,  and  procedure,  except  as  herein 
provided,  by  such  rules  and  regulations  as  the  President  may  pre- 
scribe. 

SEC.  6.  "  That  the  records  of  the  proceedings  of  the  courts  hereby 
authorized  shall  contain  such  matters  only  as  are  necessary  to  enable 
the  reviewing  authorities  to  act  intelligently  thereon,  except  that  if 
the  party  accused  demands  it  within  thirty  days  after  the  decision  of 
the  deck  court  becomes  known  to  him,  the  entire  record  or  so  much 
as  he  desires  shall  be  sent  to  the  reviewing  authority.  Such  records, 
after  action  thereon  by  the  convening  authority,  shall  be  forwarded 
directly  to,  and  shall  be  filed  in,  the  office  of  the  Judge  Advocate 
General  of  the  Navy,  where  they  shall  be  reviewed,  and,  when  neces- 
sary, submitted  to  the  Secretary  of  the  Navy  for  his  action. 

SEC.  7.  "  That  no  person  who  objects  thereto  shall  be  brought  to 
trial  before  a  deck  court.  Where  such  objection  is  made  by  the  per- 
son accused,  trial  shall  be  ordered  by  summary  or  by  general  court- 
martial  as  may  be  appropriate." 



Section  1621  of  the  Eevised  Statutes  provides  that  "  The  Marine 
Corps  shall,  at  all  times,  be  subject  to  the  laws  and  regulations  estab- 
lished for  the  government  of  the  Navy,  except  when  detached  for 
service  with  the  Army  by  order  of  the  President ;  and  when  so  de- 
tached they  shall  be  subject  to  the  rules  and  articles  of  war  prescribed 
for  the  government  of  the  Army." 

(By  the  act  of  August  29,  1916  (39  Stat.,  651),  it  is  provided  that 
"  an  officer  or  soldier  of  the  Marine  Corps  when  so  detached  may  be 
tried  by  military  court-martial  for  an  offense  committed  against  the 
laws  of  the  government  of  the  naval  service  prior  to  his  detachment, 
and  for  an  offense  committed  against  these  articles  [Articles  of  War] 
he  may  be  tried  by  a  naval  court-martial  after  such  detachment 
ceases.")  

. 

The  act  of  August  29,  1916,  provides  that  "  Officers  and  enlisted 
men  of  the  Medical  Department  of  the  Navy,  serving  with  a  body 
of  marines  detached  for  service  with  the  Army  in  accordance  with 
the  provisions  of  section  sixteen  hundred  and  twenty-one  of  the  Re- 
vised Statutes,  shall,  while  so  serving,  be  subject  to  the  rules  and 
articles  of  war  prescribed  for  the  government  of  the  Army  in  the 
same  manner  as  the  officers  and  men  of  the  Marine  Corps  while  so 

serving." 

~ 

2  See  section  9  of  this  act,  quoted  under  article  33,  A.  G.  N. 


IV. 

JURISDICTION-DELIVERY  OF  MEN  TO  CIVIL 

AUTHORITIES-HABEAS  CORPUS 

PROCEEDINGS. 


ill/JJ  Or  /ill/I  10  i}ld./jiU.U 
M'lH-         MAH-tfll 


JURISDICTION— DELIVERY  OF  MEN  TO  CIVIL  AUTHOR- 
ITIES—HABEAS CORPUS  PROCEEDINGS. 

20.  Jurisdiction  of  a  court. — The  jurisdiction  of  a  particular  court 
is  the  legal  power,  right,  or  authority  of  such  court  to  hear  and 
determine  cases  legally  referred  to  it  and  to  adjudge  sentences  within 
prescribed  limitations. 

21.  Jurisdiction  of  naval  courts-martial. — As  naval  courts-martial  are 
courts  of  limited  jurisdiction,  their  records  must  show  affirmatively 
that  they  have  authority  to  hear  and  determine  cases  coming  before 
them  for  trial.     The  jurisdiction  of  such  courts-martial  is  statutory 
and  is  limited  to  offenses  created  by  the  Articles  for  the  Government 
of  the  Navy  and  by  other  enactments  of  Congress.     The  jurisdiction 
thus  conferred  is  exclusively  criminal  in  character  and  gives  no 
authority  for  adjudging  damages  for  personal  injuries  or  private 
wrongs.     It  is  solely  for  the  purpose  of  the  maintenance  of  naval 
discipline.     In  order  that  a  naval  court-martial  may  conduct  a  legal 
trial  and  adjudge  a  valid  sentence,  it  is  necessary  that  the  jurisdic- 
tion of  such  court  be  established. 

22.  Conditions  necessary  to  show  jurisdiction. — The  following  are 
necessary  conditions  to  the  jurisdiction  of  every  naval  court-martial : 

(a)  It  must  be  convened  by  an  officer  duly  empowered  to  do  so. 

(ft)  It  must  be  legally  constituted;  that  is,  it  must  be  composed  of 
members  authorized  by  statute  to  sit  upon  such  court. 

(c)  There  must  be  jurisdiction  as  regards  to  (1)  place,  (2)  time, 
(3)  person,  (4)  offense. 

As  to  (a)  and  (&),  the  statutory  provisions  controlling  same  are 
quoted  in  Chapter  III.  As  to  (c) ,  considering  each  in  turn : 

23.  Jurisdiction   as   to   place. — The   jurisdiction   orf   naval   courts- 
martial,  except  where  restricted  by  statute   (see  art.  6,  A.  G.  N.), 
extends  not  only  to  every  part  of  the  United  States  but  also  covers  all 
offenses  of  which  it  is  authorized  to  take  cognizance  committed  by 
persons  in  the  Navy,  whether  within  or  beyond  such  territorial  limits. 

24.  Jurisdiction  as  to  time.— As  courts-martial  do  not  depend  upon 
a  state  of  war  for  their  jurisdiction,  except  in  the  case  of  a  limited 
number  of  offenses  wrhich  pertain  solely  to  a  state  of  war,  the  juris- 
diction of  naval  courts  is  restricted  in  point  of  time  only  by  the 
operation  of  the  statutes  of  limitation.     (For  the  statutes  of  limita- 
tion known  to  naval  procedure  see  arts.  61  and  62,  A.  G.  N.,  quoted 
in  Ch.  III.     In  this  connection  see  sec.  297;  see  also  C.  M.  O.  27, 
1913,  13-18.) 

25.  Jurisdiction  as  to  persons. — The  jurisdiction  of  naval  courts- 
martial  includes : 

(1)  Officers  and  enlisted  men  of  the  regular  naval  service,  includ- 
ing retired  officers.  (R.  S.,  1457.)  Members  of  the  naval  service  be- 

49 


50  INSTRUCTIONS  FOR  COURTS  AND  BOARDS. 

come  amenable  to  the  jurisdiction  of  courts-martial  upon  their  entry 
into  such  service.  Except  for  the  offenses  provided  for  in  article  14, 
A.  G.  N.,  this  amenability — both  as  to  officers  and  enlisted  men — 
ceases  upon  their  separation  from  the  service,  whether  by  resignation, 
dismissal,  discharge,  or  other  lawful  method  of  separation.  But 
where  proceedings  with  a  view  to  trial  have  been  instituted  before 
such  separation,  the  naval  jurisdiction  attaches,  and,  once  attached, 
continues,  A  court-martial,  having  acquired  jurisdiction  by  a  proper 
commencement  of  proceedings,  can  not  be  divested  of  it  by  any  sub- 
sequent change  in  the  status  of  the  accused.  (Barrett  v.  Hopkins, 
7  Fed.,  312;  see  C.  M.  O.  26, 1917.) 

(2)  Midshipmen  at  the  Naval  Academy.     They  are  made  amenable 
to  trial  by  general  court-martial  by  statute.     (28  Stat,  838.)     They 
are  also  amenable  to  trial  by  special  Naval  Academy  court-martial 
for  the  offense  of  hazing.     (See  Ch.  X.) 

(3)  Members  of  the  National  Naval  Volunteers  when  employed  in 
active  service  in  time  of  emergency.     (Act  of  Aug.  29,  1916,  39 
Stat,  593.) 

(4)  Members  of  the  Naval  Keserve  Force  (including  Marine  Corps 
Reserve)    whenever    actively   employed    with    the    Navy    (Marine 
Corps) .    (Act  of  Aug.  29, 1£16,  39  Stat.,  587.) 

(5)  Members  of  the  Naval  Militia  when  called  into  the  service 
of  the  United  States  by  order  of  the  President.     (Act  of  Feb.  16, 
1914,  38  Stat.,  284.) 

(6)  Members  of  the  Coast  Guard  "whenever,  in  time  of  war,  the 
Coast  Guard  operates  as  a  part  of  the  Navy  in  accordance  with  law." 
(39  Stat.,  600.)     The  law  prescribes  that  the  Coast  Guard  shall 
operate  as  a  part  of  the  Navy  "  in  time  of  war  or  when  the  President 
shall  so  direct."     (38  Stat,  800.) 

(7)  Members  of  the  Public  Health  Service  when  serving  on  Coast 
Guard  vessels  in  time  of  war,  or  detailed  in  time  o'f  war  for  duty 
with  the  Navy.    (Act  of  July  9, 1917.) 

(8)  Members  of  the  Lighthouse  Service  when  serving  with  the 
Navy  by  order  of  the  President.     (Act  of  Aug.  29,  1916,  39  Stat., 
602.) 

(9)  Members  of  the  Coast  and  Geodetic  Survey  Service  when  serv- 
ing with  the  Navy  by  order  of  the  President.    (Act  of  May  22, 1917.) 

(10)  De  facto  enlisted  men.    A  fraudulent  enlistment  is  still  an 
enlistment,  and  a  man  so  enlisting  is  de  facto  in  the  service  and 
subject  to  the  jurisdiction  of  a  court-martial. 

(11)  Persons  discharged  from  the  Navy,  being  guilty  of  certain 
offenses  while  in  the  naval  service.    ( See  art.  14,  A.  G.  N. ) 

(12)  Certain  civilians  in  time  of  war.     (See  art.  5,  A.  G.  N.) 

26,  Jurisdiction  as  to  offenses. — As  naval  courts-martial  are  courts 
of  statutory  jurisdiction,  statutory  authority  must  be  found  for 


INSTRUCTIONS  FOB  COURTS  AND  BOARDS.  51 

offenses  chargeable  before  such  courts.  Such  authority  is  contained 
in  the  Articles  for  the  Government  of  the  Navy  (Ch.  Ill),  which 
define  specific  offenses  against  naval  law  and  comprehend  other 
offenses  by  one  broad  provision  (art.  22). 

27.  Concurrent  jurisdiction, — Courts-martial  have  exclusive  jurisdic- 
tion to  try  offenders  for  acts  constituting  offenses  against  naval  law 
only ;  they  also  have  authority  to  try  offenders  for  certain  acts  which, 
besides  constituting  offenses  against  naval  law,  are  also  civil  crimes 
of  which  civil  courts  may  take  cognizance.    In  such  cases  the  same 
act  may  be  an  offense  both  against  naval  law  and  against  a  State  or 
foreign  law  if  committed  within  the  jurisdiction  of  a  State  or  foreign 
government.    Therefore,  when  such  offender  has  been  brought  to 
trial  in  a  State  or  foreign  court,  he  may,  nevertheless,  thereafter  be 
brought  to  trial  by  naval  court-martial  notwithstanding  his  convic- 
tion and  punishment  or  his  acquittal  by  such  civil  court,  and  vice 
versa.     But  when  an  act,  prohibited  both  by  naval  law  and  the  civil 
law  of  the  Federal  Government,  is  committed  within  Federal  juris- 
diction, and  the  offender  is  tried  either  by  a  court-martial  or  a  Fed- 
eral civil  court,  both  of  which  derive  their  jurisdiction  from  the 
same  source — the  Federal  Government — then  the  same  act  constitutes 
but  one  offense,  namely,  an  offense  against  the  United  States,  and 
trial  by  either  is  a  bar  to  trial  by  the  other  on  the  ground  of  former 
jeopardy.     (Graf ton  v.  United  States^  206  U.  S.,  333.) 

28.  Appellate  jurisdiction. — When  a  court-martial  is  lawfully  con- 
stituted, has  jurisdiction  of  the  person  and  of  the  offense  of  an 
accused,  and  the  sentence  imposed  is  a  legal  one,  civil  courts  are 
without  power  to  review  its  proceedings.     When  the  proceedings, 
findings,  and  sentence  in  such  case  have  been  approved  by  the  proper 
naval  authority,  such  approval  is  final  and  there  is  no  other  tribunal 
to  which  an  appeal  can  be  taken.     But  when  a  court-martial  is  not 
legally  constituted,  is  without  jurisdiction,  of  adjudges  an  illegal 
sentence,  its  proceedings  may  be  attacked  in  the  proper  Federal  civil 
court  either  by  means  of  a  writ  of  habeas  corpus  where  there  is 
unlawful  restraint,  or,  in  the  case  of  illegal  dismissal,  by  bringing 
suit  for  pay  thereby  withheld. 

29.  Delivery  of  men  to  civil  authorities, — 

(1)  Commanding  officer  must  notify  department  and  aw  ait  instruc- 
tions.— In  no  case  will  commanding  officers  of  vessels  or  shore  sta- 
tions of  the  Navy  or  Marine  Corps  deliver  to  the  civil  authorities, 
State  or  Federal,  any  person  in  their  custody  or  under  their  control 
without  first  communicating  with  the  Secretary  of  the  Navy  and 
awaiting  his  instructions  in  the  premises.  The  Secretary  of  the 
Navy  will  promptly  issue  the  necessary  orders  in  the  case  or  make 
request  upon  the  Attorney  General,  in  accordance  with  Title  VIII 
of  the  Eevised  Statutes  of  the  United  States,  to  furnish  such  legal 


52  INSTRUCTIONS  FOR  COURTS  AND  BOARDS. 

assistance  to  the  commanding  officer  concerned  as  the  interests  of  the 
United  States  involved  in  such  case  may  demand.  (See  par.  7, 
below.) 

(2)  The  words  "in  no  case,"  as  used  in  the  above  paragraph,  are 
intended  to  refer  to  every  case  in  which  the  civil  authorities,  Federal 
or  State,  request  or  demand  the  delivery  to  them  of  any  officer  or 
enlisted  man  in  the  Navy  or  Marine  Corps,  whether  for  the  purpose 
of  determining  the  legality  of  his  detention  by  the  naval  authorities, 
or  of  trying  him  for  a  violation  of  the  Federal  or  State  laws,  or  of 
securing  the  testimony  of  a  naval  prisoner  as  a  witness  in  a  civil 
court.     The  instructions  contained  in  the  above  paragraph  accord- 
ingly apply  to  and  include  all  cases  in  which  writs  of  habeas  corpus, 
requisitions  of  the  governor  or  chief  executive  of  any  State,  warrants 
ad  testificandum,  or  other  civil  process  of  any  kind  are  served  on 
commanding  officers  of  the  Navy  or  Marine  Corps,  afloat  or  ashore, 
for  the  purpose  of  securing  the  delivery  of  any  person  under  their 
control  to  such  civil  authorities.     ( See  par.  10,  below. ) 

(3)  In  such  cases  occurring  outside  of  the  District  of  Columbia, 
the  report  to  the  Secretary  of  the  Navy  will  be  telegraphic,  to  be 
followed  immediately  by  letter  containing  full  statement  of  the  facts. 
In  order  to  expedite  action,  the  telegraphic  report  will  be  addressed 
to  the  Secretary  of  the  Navy  direct,  and  the  first  words  in  the 
message  will  be  "  For  Judge  Advocate  General." 

(4)  Habeas  corpus  proceedings,  Federal  courts. — In  this  connec- 
tion  there   is  quoted   for  the  information   of   the   service   section 
756  of  the  Eevised  Statutes  of  the  United  States,  which  prescribes 
the  time  allowed  for  making  return  to  writs  of  habeas  corpus  issued 
by  the  Federal  courts : 

"Any  person  to  whom  such  writ  is  directed,  shall  make  due  return 
thereof  within  three  days  thereafter,  unless  the  party  be  detained 
beyond  the  distance  of  twenty  miles ;  and  if  beyond  that  distance  and 
not  beyond  a  distance  of  a  hundred  miles,  within  ten  days;  and  if 
beyond  the  distance  of  a  hundred  miles,  within  twenty  days." 

(5)  The  officer  upon  whom  such  a  writ  of  habeas  corpus  is  served 
can  not  be  required  to  obey  same  in  any  shorter  period  after  the 
service  of  the  writ  than  that  specified  in  the  above  section  of  the  Re- 
vised Statutes,  even  though  the  writ  should  in  terms  require  that 
the  person  named  therein  be  produced  "  forthwith,"  or  "  immedi- 
ately," or  at  a  specified  time.     (Ex  parte  Baez,  177  U.   S.,  389; 
United  States  v.  Bollman,  24  Fed.  Cas.,  1190.) 

(6)  The  United  States  Revised  Statutes  contain  the  following 
further  provisions  concerning  habeas  corpus  proceedings  instituted 
in  the  Federal  courts: 

"  SEC.  757.  The  person  to  whom  the  writ  is  directed  shall  certify 
to  the  court  or  justice  or  judge  before  whom  it  is  returnable  the  true 
cause  of  the  detention  of  such  party. 


INSTRUCTIONS  FOR  COURTS  AND  BOARDS.  53 

"  SEC.  758.  The  person  making  the  return  shall  at  the  same  time 
bring  the  body  of  the  party  before  the  judge  who  granted  the  writ. 

"  SEC.  759.  When  the  writ  is  returned,  a  day  shall  be  set  for  the 
hearing  of  the  cause,  not  exceeding  five  days  thereafter,  unless  the 
party  petitioning  requests  a  longer  time." 

(7)  In  accordance  with  the  foregoing  sections  of  the  Re  vised 
Statutes,  should  instructions  for  any  reason  not  be  received  by  the 
commanding  officer  from  the  Secretary  of  the  Navy  by  the  last  day 
of  the  period  allowed  by  law  for  making  return  to  a  writ  of  habeas 
corpus   issued   by   a   Federal   court,   the   commanding   officer   will 
certify  to  the  court  or  justice  or  judge  before  whom  the  writ  is  re- 
turnable the  true  cause  of  the  detention  of  the  party,  if  in  his  cus- 
tody, and  will  at  the  same  time  bring  the  body  of  the  said  party  be- 
fore the  judge  who  granted  the  writ,  and  request  the  court  to  delay 
the  hearing  of  the  cause  for  the  full  period  of  five  days  allowed  by 
law,  so  that  further  opportunity  may  be  afforded  for  the  receipt  of 
instructions  in  the  premises  from  the  Secretary  of  the  Navy.     If  the 
party  is  not  in  the  custody  of  the  officer  to  whom  the  writ  is  directed, 
he  will  so  state  in  his  return.     (As  to  definition  of  "custody,"  see 
Wales  v.  Whitney,  114  U.  S.,  564.) 

(8)  Habeas  corpus  proceedings,  /State  courts. — State  courts  have 
no  jurisdiction  in  habeas  corpus  proceedings  to  order  the  discharge 
of  any  person  held  by  an  officer  of  the  Navy  or  Marine  Corps  by  au- 
thority of  the  United  States;  however,  in  the  event  that  a  writ  of 
habeas  corpus  should  be  issued  by  a  State  court  to  a  commanding 
officer  of  the  Navy  or  Marine  Corps,  afloat  or  ashore,  the  Secretary 
of  the  Navy  will  be  communicated  with  immediately  in  accordance 
with  paragraph  three  of  this  order;  and  should  instructions  not  be 
received  by  the  commanding  officer  from  the  Secretary  of  the  Navy 
by  the  time  specified  in  the  writ,  or  if  no  definite  time  be  specified 
therein,  within  three  days  after  the  service  of  the  writ  (United  States 
v.  Bollman,  24  Fed.  Cas.,  1190)  the  officer  upon  whom  the  writ  is 
served  will  make  return  thereto  in  accordance  with  instructions  in 
section  32,  without  producing  the  body  of  the  party  in  court. 

(9)  Delivery  of  men  to  State  authorities  for  trial. — In  every  case 
in  which  the  Secretary  of  the  Navy  authorizes  the  delivery  of  any 
person  in  the  Navy  or  Marine  Corps  to  the  civil  authorities  of  a 
State  for  trial,  the  senior  officer  present  will,  before  making  such 
delivery,  obtain  from  the  governor  or  other  duly  authorized  officer 
of  such  State  assurance  that  the  person  so  delivered  will  be  returned 
to  the  naval  authorities  at  the  place  of  his  delivery  without  expense 
to  the  United  States,  immediately  upon  the  completion  of  his  trial 
for  the  alleged  misconduct  which  occasioned  his  delivery  to  the  civil 
authorities  in  the  event  that  he  is  acquitted  upon  said  trial,  or  imme- 
diately upon  satisfying  the  sentence  of  the  court  in  the  event  that  he 
is  convicted  and  a  sentence  imposed,  or  upon  other  disposition  of  his 


54  INSTRUCTIONS  FOB  COURTS  AND  BOARDS. 

case,  provided  that  the  naval  authorities  shall  then  desire  his  return. 
(Instructions  of  the  Secretary  of  the  Navy,  Mar.  7,  1908,  file  425-2; 
Apr.  1,  1908,  file  2928-8;  June  19,  1912,  file  26524-45;  Feb.  12,  1914, 
file  26524-57;  June  26,  1914,  file  26524-61;  see  also  file  26524-04; 

1579-03;  G.  O.,  No.  18,  U.  S.  M.  C.,  Mar.  29,  1909.-)     (See  par.  12, 

t  \ 

below.) 

(10)  The  instructions  contained  in  paragraphs  1  and  9  include 
cases  where  the  delivery  of  a  person  in  the  Navy  or  Marine  Corps 
attached  to  a  navy  yard  or  station,  or  serving  on  board  a  vessel  at 
such  yard  or  station,  is  demanded  by  the  civil  authorities  of  the  State 
in  which  such  navy  yard  or  station  is  located,  although  such  State 
has  expressly  retained  jurisdiction  to  serve  civil  or  criminal  process 
within  the  limits  of  the  navy  yard  or  station  in  question.     (Decision 
of  the  Secretary  of  the  Navy,  Feb.  12,  1914,  file  26524-57.) 

(11)  Action  where  men  are  convicted  by  civil  authorities. — Incases 
in  which  men  delivered  to  the  civil  authorities  for  trial  are  convicted, 
the  commanding  officer  will  make  full  report  of  the  offense  and  sen- 
tence to  the  Bureau  of  Navigation  or  the  commandant  of  the  Marine 
Corps,  as  the  case  may  be,  with  recommendation  as  to  whether  the 
man  should  be  discharged  as  undesirable.     (File  1579-03,  Feb.  14, 
1903,  and  June  11,  1903.) 

(12)  Form  of  agreement  as  to  expenses. — The  following  is  sug- 
gested as  a  form  of  agreement  acceptable  to  the  department  in  cases 
referred  to  in  paragraph  9 : 

"  In  consideration  of  the  delivery  of ,  United 

States  Navy  (or  United  States  Marine  Corps),  to , 

at . ,  for  trial  upon  the  charge 

of ,  I  hereby  agree,  pursuant  to 

the  authority  vested  in  me  as ,  that  said 

will  be  returned  to  the  naval  authorities  at  the  aforesaid  place  of 
his  delivery  without  expense  to  the  United  States  immediately  upon 
the  completion  of  his  trial  upon  the  charge  aforesaid  in  the  event 
that  he  is  acquitted  upon  said  trial,  or  immediately  upon  satisfying 
the  sentence  of  the  court  in  the  event  that  he  is  convicted  and  a 
sentence  imposed,  or  upon  other  disposition  of  his  case,  provided 
that  the  naval  authorities  shall  then  desire  his  return." 

(The  department  considers  this  agreement  substantially  complied  with  when  the  man 
is  furnished  transportation  back  to  his  station  and  necessary  cash  to  cover  his  inci- 
dental expenses  en  route  thereto  and  the  Navy  Department  so  informed.) 

(13)  Agreement  not  required  of  Federal  authorities. — An  agree- 
ment as  to  expenses  will  not  be  exacted  as  a  condition  to  the  delivery 
of  men  to  the  Federal  authorities,  either  in  response  to  writs  of  habeas 
corpus,  as  witnesses,  or  for  trial.    However,  in  such  cases  the  expenses 
will  be  defrayed  as  follows:  The  person  who  produces  a  man  in  a 
Federal  court  in  response  to  a  writ  of  habeas  corpus  or  as  a  witness 
will  keep  an  accurate  account  of  expenses,  and  present  same  to  the 
United  States  marshal  for  the  district  in  which  the  court  is  sitting, 


INSTRUCTIONS  FOR   COURTS  AND  BOARDS.  55 

who  is  the  proper  officer  to  settle  such  account,  including  the  expenses 
of  the  return  trip.  (File  26251-8684:  2  &  4.)  Men  desired  by  the 
Federal  authorities  for  trial  will  be  called  for  and  taken  into  custody 
by  a  United  States  marshal  or  deputy  marshal;  in  such  case  the 
expense  of  transporting  the  man  to  the  place  of  trial  will,  of  course, 
be  defrayed  by  the  marshal.  The  question  whether  the  man  in  such 
case  may  be  returned  to  the  Navy  at  the  expense  of  the  United  States 
if  not  convicted,  and  if  so,  what  appropriation  is  available  therefor, 
has  not  been  settled.  (See  14  Comp.  Dec.,  824;  87  S.  &  A.  Memo., 
713.) 

(14)  Governor's  requisition  necessary  in  certain  cases. — -In  cases 
in  which  the  delivery  of  any  person  in  the  Navy  or  Marine  Corps  for 
trial  is  desired  by  the  civil  authorities  of  a  State,  and  such  person  is 
not  attached  to  or  serving  at  a  navy  yard  or  other  place  within  the 
limits  of  said  State,  requisition  for  the  delivery  of  the  party  must  be 
made  by  the  governor  or  chief  executive  of  such  State,  addressed  to 
the  Secretary  of  the  Navy,  showing  that  the  party  desired  is  charged 
writh  a  crime  in  that  State  for  which  he  could  be  extradited  under 
the  Constitution  of  the  United  States,  the  enactments  of  Congress,  and 
the  laws  of  the  State  desiring  his  delivery.     (File  26524-61,  June  1, 
1914;  26524r-62,  June  22,  1914;  2  Op.  Atty.  Gen.,  10.)     Such  requi- 
sition may  be  forwarded  to  the  Secretary  of  the  Navy  by  mail  for 
preliminary  examination,  together  with  the  appointment  of  the  agent 
of  the  State  to  whom  it  is  desired  that  delivery  be  made.    Thereupon, 
if  the  papers  are  found  to  be  in  due  form,  the  Secretary  of  the  Navy 
will  send  the  necessary  authorization  to  the  designated  agent  permit- 
ting  him  to  take  the   party  into    custody  upon  compliance    with 
paragraph  9,  above.    (File  26524-64r-69-83. ) 

(15)  Naval  prisoners  wanted  by  civil  authorities  for  trial. — In 
any  case  in  which  the  delivery  of  a  person  in  the  Navy  or  Marine 
Corps  for  trial  is  desired  by  the  civil  authorities,  Federal  or  State, 
and  such  person  is  a  naval  prisoner   (which  includes  any  person 
serving  sentence  of  court-martial  or  in  custody  awaiting  trial  by 
court-martial  or  disposition  of  charges  against  him),  he  will  not  in 
general  be  delivered  to  the  Federal  or  State  authorities  until  he  has 
served  the  sentence  of  the  naval  court-martial,  or  his  case  has  other- 
wise been  finally  disposed  of  by  the  naval  authorities.     (File  26251- 
164,  June  4  and  Oct.  19,  1908;  26251-5546:  1,  Jan.  20,  1912;  26251- 
6397:  l,Aug.  28,  1912;  letter  of  Attorney  General  to  Secretary  of 
the  Navy,  Apr.  16, 1907,  No.  99858,  N.  D.  file  6674-33 ;  7538-142,  Dec. 
3,  1913;  7538-74,  Oct.  4,  1909;  Army  Digest,  1912,  135  D.)     How- 
ever, if  the  Federal  or  State  authorities  desire  the  surrender  of  the 
party  under  the  above  circumstances  upon  a  serious  charge,  such  as 
felonious  homicide,  and  the  interests  of  justice  would  be  better  sub- 
served by  his  delivery,  the  Secretary  of  the  Navy  may,  in  his  discre- 


56  INSTRUCTIONS  FOR   COURTS  AND  BOARDS. 

tion,  discharge  the  man  from  naval  custody  and  from  his  contract  of 
enlistment  and  deliver  him  to  the  civil  authorities  for  trial.  (File 
26251-2798:2,  Jan.  24,  1910;  Army  Digest,  1912,  135  D,  130.) 

(16)  Naval  prisoners  as  witnesses  or  parties  in  civil  courts. — If 
the  Federal  or  State  authorities  desire  the  attendance  of  a  naval 
prisoner  (see  par.  15  above)  as  a  witness  in  a  criminal  case  pending 
in  a  civil  court,  upon  the  submission  of  such  a  request  to  the  Secre- 
tary of  the  Navy  authority  will  be  given  in  a  proper  case  for  the 
production  of  the  man  in  court  without  resort  being  had  to  a  writ 
of  habeas  corpus  ad  testificandum.     (File  26251-8684:2,  June  10, 
1914;  26276-93,  May  29,  1914;  26276-40,  June  10,  1912;  26276-33, 
June  5,  1911;  26276-17,  Nov.  10,  1909;  Army  Digest,  1912,  221  a.) 
The  department,  however,  will  not  authorize  the  attendance  of  a 
naval  prisoner  in  a  Federal  or  State  court,  either  as  a  party  or  as  a 
witness  in  private  litigation  pending  before  such  court,  as  in  such 
cases  the  court  may  grant  a  postponement  or  a  continuance  of  the 
trial;  but  the  department  will  allow  the  deposition  of  such  naval 
prisoner  to  be  taken  in  the  case.     (File  26251-4913 : 1,  Oct.  12,  1911 ; 
26276-36,  Dec.  9,  1911.) 

(17)  Men  released  by  civil  authorities  on  bail. — Where  a  person 
in  the  Navy  or  Marine  Corps  is  arrested  by  the  Federal  or  State 
authorities  for  trial  and  returns  to  his  ship  or  station  on  bail,  the 
commanding  officer  may  grant  him  leave  of  absence  to  appear  for 
trial  on  the  date  set  upon  an  official  statement  by  the  judge,  prose- 
cuting attorney,  or  clerk  of  the  court,  reciting  the  facts,  giving  the 
date  on  which  the  appearance  of  the  man  is  required,  and  the  ap- 
proximate length  of  time  that  should  be  covered  by  such  leave  of 
absence.     (File  5322,  May  23,  1906;  26524-45,  June'l9,  1912;  Army 
Digest,  137  K.) 

(18)  Service  of  subpoenas — Leave  of  absence  granted — Produc- 
tion of  records  in  court — Preliminary  examination  of  records. — In 
cases  in  which  the  Federal  or  State  authorities  desire  to  subpoena 
any  person  in  the  Navy  or  Marine  Corps  other  than  a  naval  prisoner 
as  a  witness,  the  following  instructions  will  govern : 

(a)  Commanding  officers  afloat  or  ashore  are  authorized  to  per- 
mit the  service  of  such  process  upon  the  person  named  therein,  but 
service  will  not  be  allowed  without  such  permission  of  the  command- 
ing officer  first  being  obtained.  In  cases  in  which  service  by  mail 
is  legally  sufficient,  the  papers  may  be  addressed  to  the  commanding 
officer  with  request  that  they  be  delivered  to  the  man  named  therein. 
(File  6769-21,  July  19,  1911;  26524-59,  May  1,  1914.) 

(&)  In  such  cases  the  commanding  officer  is  authorized  to  grant 
leave  of  absence  to  the  person  subpoenaed  in  order  to  permit  him  to 
obey  such  subpoena,  unless  the  public  interests  would  be  seriously 
prejudiced  by  his  absence,  in  which  case  full  report  of  the  matter 


INSTRUCTIONS  FOB  COURTS  AND  BOARDS.  57 

should  be  made  to  the  department.  (File  26276,  Apr.  27,  1908, 
May  19,  1908,  June  9,  1908.)  This  includes  cases  in  which  the  party 
is  subpoenaed  as  a  witness  before  a  general  court  martial  of  a  State. 
(File  7022-3,  Oct.  12,  1907.) 

(c)  Officers  of  the  Navy  or  Marine  Corps  are  prohibited  from 
producing  official  records  or  copies  thereof  in  a  State  court  in  answer 
to  subpoenas  duces  tecum,  or  otherwise,  without  first  obtaining  au- 
thority therefor  from  the  Secretary  of  the  Navy.  (File  26276-26, 
June  16,  1910;  Boske  v.  Comingore,  177  U.  S.,  460.)  In  all  cases 
where  copies  of  records  are  desired  by  or  on  behalf  of  parties  to  a 
suit,  whether  in  a  Federal  or  State  court,  such  parties  will  be  in- 
formed that  it  has  been  the  invariable  practice  of  the  Navy  Depart- 
ment to  decline  to  furnish  in  the  case  of  legal  controversies,  at  the 
request  of  the  parties  litigant,  copies  of  papers  or  other  informa- 
tion to  be  used  in  the  course  of  the  proceedings,  or  to  grant  per- 
mission to  such  parties  or  their  attorneys  to  make  preliminary  OP 
informal  examination  of  the  records,  but  that  the  department  will 
promptly  furnish  copies  of  papers  or  records  in  such  cases  upon 
call  of  the  court  before  which  the  litigation  is  pending.  (File  5467-8, 
Mar.  27,  1907;  12475-46,  July  12,  1913;  Boske  'v.  Comingore,  177 
U.  S.,  461 ;  file  12475-52: 1,  Aug.  7,  1914.) 

30.  Return  to  writ  of  habeas  corpus  by  United  States  court. — The 
return  to  a  writ  of  habeas  corpus  issued  by  a  United  States  court 
shall  be  made  in  accordance  with  the  following  form.  A  copy  of 
the  brief  of  authorities  set  forth  in  section  33  shall  be  filed  with  the 
return. 

,_ 

RETURN  TO  WRIT  OF  HABEAS  CORPUS  ISSUED  BY  A  UNITED  STATES 

~  T 

COURT  OR  JUDGE. 

In  the  District  Court  of  the  United  States  for  the  (Eastern)  District 

of  (Virginia). 

Tn  the  matter  of      1 

|  Return  of  respondent. 
A F.  B .  J 

UPON    APPLICATION   FOR   WRIT   OF   HABEAS    CORPUS. 

To  the  Honorable  G H.  R ,  Judge  of  said  Court   (or 

To  the  said  Court) : 

1.  Comes  now  M H.   C ,  captain,  U.   S.   Navy    (or 

U.  S.  Marine  Corps),  commanding  officer  of  the  ,  and  by 

way  of  return  to  the  writ  of  habeas  corpus  issued  herein,  states,  in 
conformity  with  the  provisions  of  section  757  of  the  Revised  Stat- 
utes of  the  United  States,  as  follows,  to  wit : 

2.  That  the  said  A F.   B enlisted  in  the  United 

States  Navy  (or  in  the  United  States  Marine  Corps)  as on 


58  INSTRUCTIONS  FOR  COURTS  AND  BOARDS. 

the day  of ,  19 — ,  at  (Boston,  Massachusetts),  for  a  term 

of  four  years  from  that  date. 

3.  That  the  said  A F.  B ,  at  the  time  of  his  enlist- 
ment as  aforesaid,  stated  on  oath  that  he  was  born  on  the day 

Of ?  1 — 9  thus  making  him  more  than  eighteen  years  of  age, 

as  will  appear  from  a  copy  of  the  enlistment  record  of  said  A 

F.  B ,  hereto  attached  as  a  part  of  this  return ;  that  since  the 

enlistment  of  said  A F.  B he  has  received  pay  and 

allowances  from  time  to  time  thereunder;  that  on  the day  of 

,  19 — ,  the  said  A F.  B was  detained  and  recom- 
mended for  trial  by  general  court-martial  for  fraudulent  enlist- 
ment in  the  United  States  Navy,  in  violation  of  the  act  of  Congress 
approved  March  3,  1893,  United  States  Statutes  at  Large,  volume 
twenty-seven,  page  seven  hundred  and  sixteen;  and  that  said  action 
was  before  the  issuing  of  the  writ  herein. 

4.  That  the  said  A F.  B deserted  from  said  United 

States  Navy  (or  United  States  Marine  Corps)  at  (Boston,  Massachu- 
setts), on  the day  of ,  19 — ,  and  remained  absent  in  deser- 
tion until  he  was  apprehended  at  (Norfolk,  Virginia) ,  on  the day 

of  ?  19 — ?  an(j  was  thereupon  committed  to  the  custody  of 

the  respondent,  as  commanding  officer  of  the ;  and  that  the 

said  A F.  B was  detained  and  recommended  for  trial 

by  general  court-martial  for  said  offense  of  desertion  in  violation 
of  section  1624  of  the  Eevised  Statutes  of  the  United  States. 

5.  That  the  said  A F.  B has  been  duly  arraigned 

and  tried  for  the  said  offenses  before  a  general  court-martial  con- 
vened by  order  of  the  Secretary  of  the  Navy   (and  is  now  held, 
awaiting  the  action  of  the  convening  authority  upon  the  proceedings 
and  findings  of  said  court)   (or  was  convicted  thereof  by  said  court 

and  was  sentenced  to  ,  which  sentence  was  approved    (or 

was  mitigated  to and  approved)  on  the day  of , 

19 — }  by  the  Secretary  of  the  Navy,  as  required  by  article  53,  sec- 
tion 1624,  of  the  Revised  Statutes  of  the  United  States.     (A  copy 
of  the  order  promulgating  said  sentence  and  the  action  of  the  Sec- 
retary of  the  Navy  thereon  is  hereto  attached). 

6.  This  respondent  here  produces  in  court  the  body  of  the  said 

A F.  B ,  as  commanded  by  the  writ  of  habeas  corpus 

issued  in  this  matter  as  aforesaid,  but  he  prays  that  your  honor 

(or  this  honorable  court)  will  refuse  to  discharge  the  said  A — 

F.  B and  will  return  and  remand  him  to  the  custody  of  this 

respondent. 

Respectfully  submitted. 

M H.  C , 

Captain,  U.  S.  Navy,  Commanding . 

G 


INSTRUCTIONS  FOR  COURTS  AND  BOARDS.  59 

Var.  1. — //  the  offense  is  not  fraudulent  enlistment  by  a  minor 
under  18  years  of  age,  omit  paragraph  3  above. 

Var.  2. — //  the  offense  is  fraudulent  enlist  by  a  minor  under  18 
years  of  age  without  desertion,  omit  paragraph  4  above. 

Var.  3. — //  the  offense  is  neither  fraudulent  enlistment  ~by  a  minor 
under  18  years  of  age  nor  desertion,  omit  paragraphs  3  and  4  above 
and  substitute  an  appropriate  description  of  the  offense  for  which  the 
accused  is  detained,  and  state  whether  or  not  he  has  been  recom- 
mended for  trial  by  general  court-martial  for  said  offense. 

Var.  4. — //  the  accused  has  not  been  tried  by  general  court  mar- 
tial, omit  paragraph  5  above. 

(See  section  29  (4),  (5),  (6),  (7). 

31.  If  decision  is  adverse,  an  appeal  shall  be  noted. — Should  the  court, 
Federal  or  State,  render  a  decision  adverse  to  the  United  States,  the 
officer  making  the  return,  or  counsel,  should  note  an  appeal  pending 
instructions  from  the  Navy  Department,  and  he  shall  report  to  the 
Judge  Advocate.  General  of  the  Navy  immediately  the  action  taken 
by  the  court  and  forward  to  the  Judge  Advocate  General,  direct,  a 
copy  of  the  opinion  of  the  court  as  soon  as  it  can  be  obtained. 

32.  Return  to  writ  of  habeas  corpus  by  a  State  court. — The  return  to 
a  writ  issued  by  a  State  court  shall  be  made  in  accordance  with 
the  following  form.     No  copy  of  the  brief  set  forth  in  section  33  shall 
be  filed  with  the  return  to  the  writ  of  habeas  corpus  issuing  from  a 
State  court. 

RETURN  TO  WRIT  OF  HABEAS  CORPUS  BY  A  STATE  COURT. 

In  re  A.—       -  P.  M—    — ,  private,  U.  S.  Marine  Corps.  1 

Writ  of  habeas  corpus.  Return  of  respondent. 
(When  the  writ  issues  from  a  State  court,  the  return  is  made  in 
the  same  manner  -as  to  a  United  States  court,  with  the  exception  of 
the  concluding  paragraph,  which  should  be  in  the  following  form:) 
And  the  said  respondent  further  makes  return  that  he  has  not 
produced  the  body  of  the  said  A—  —  P.  M—  — ,  because  he  holds 
him  by  authority  of  the  United  States  as  above  set  forth,  -and  that 
this  court  (or,  your  honor,  as  the  case  may  be}  is  without  jurisdic- 
tion in  the  premises,  and  he  respectfully  refers  to  the  decisions  of 
the  Supreme  Court  of  the  United  States  in  Ableman  v.  Booth  (21 
Howard,  506),  and  Tarble's  case  (13  Wallace,  397),  as  authority 
for  his  action,  and  prays  this  court  (or,  your  honor)  to  dimiss  the 
writ. 

W •—  X.  Y , 

Captain,  U.  S.  Navy, 

Commanding  . 

(See  section  29  (8). 

26450°— 17 5 


60  INSTRUCTIONS  FOR   COURTS  AND  BOARDS. 

33.  Brief  to  be  filed  with  return  to  a  writ  of  habeas  corpus  issued  by  a 
United  States  court.  — 


JUDGMENTS    OF    COURTS    MARTIAL    ACTING    WITHIN    THEIR    JURISDICTION 
ARE  NOT  OPEN  TO  REVIEW  BY  CIVIL  COURTS. 

It  is  well  settled  by  the  authorities  that  the  civil  courts  have  no 
power  to  review  the  proceedings  of  a  legally  constituted  court  mar- 
tial except  for  the  purpose  of  determining  (a)  whether  such  court 
was  acting  within  its  jurisdiction;  and  (b)  whether  its  sentence  was 
in  accordance  with  law,  and  was  duly  approved  by  the  proper  mili- 
tary authority. 

In  the  leading  case  of  Dynes  v.  Hoover  (20  How.,  55,  82),  it  was 
said  by  Mr.  Justice  Wayne  in  delivering  the  opinion  of  the  court  : 

With  the  sentences  of  courts-martial  which  have  been  con- 
vened regularly,  and  have  proceeded  legally,  and  by  which 
punishments  are  directed,  not  forbidden  by  law,  or  which  are 
according  to  the  laws  and  customs  of  the  sea,  civil  courts  have 
nothing  to  do,  nor  are  they  in  any  way  alterable  by  them.  If 
it  were  otherwise,  the  civil  courts  would  virtually  administer 
the  rules  and  articles  of  war,  irrespective  of  those  to  whom 
that  duty  and  obligation  has  been  confided  by  the  laws  of  the 
United  States,  from  whose  decisions  no  appeal  or  jurisdiction 
of  any  kind  has  been  given  to  the  civil  magistrate  or  civil 
courts. 

Substantially  the  same  proposition  has  been  affirmed  in  an  un- 
broken line  of  authorities  as  often  as  the  question  has  been  pre- 
sented. Thus,  in  Carter  v.  Roberts  (177  U.  S.,  496),  it  was  said  : 

Courts-martial  are  lawful  tribunals,  with  authority  to  finally 
determine  any  case  over  which  they  have  jurisdiction,  and 
their  proceedings,  when  confirmed  as  provided,  are  not  open 
to  review  by  the  civil  tribunals,  except  for  the  purpose  of 
ascertaining  whether  the  military  court  had  jurisdiction  of 
the  person  and  subject  matter,  and  whether,  though  having 
such  jurisdiction,  it  had  exceeded  its  powers  in  the  sentence 
pronounced. 

The  above  extract  from  Carter  v.  Roberts  was  quoted  with  ap- 
proval in  Carter  v.  McClaughry  (183  U.  S.,  401),  in  which  case  the 
court  further  stated: 

We  must  not  be  understood  by  anything  we  have  said  as  in- 
tending in  the  slightest  degree  to  impair  the  salutary  rule 
that  the  sentences  of  courts-martial,  when  affirmed  by  the  mili- 
tary tribunal  of  last  resort,  can  not  be  revised  by  the  civil 
courts  save  only  when  void  because  of  an  absolute  want  of 
power,  and  not  merely  voidable  because  of  the  defective  exer- 
cise of  power  possessed. 

Specifically,  it  has  been  decided  that  where  the  military  authori- 
ties proceed  regularly  within  their  jurisdiction  they  can  not  be  inter- 


INSTRUCTIONS  FOR   COURTS  AND   BOARDS.  61 

f ered  with  "  no  matter  what  errors  may  be  committed  in  the  exercise 
of  their  lawful  jurisdiction"  (In  re  McVey,  23  Fed.  Rep.,  878). 

Again  in  the  case  of  Swaim  v.  United  States  (28  Ct.  Cls.,  217, 
affirmed  165  U.  S.,  563),  it  was  stated: 

Undoubtedly  errors  are  committed  by  courts-martial  which 
a  civil  tribunal  would  regard  as  sufficient  ground  for  a  re- 
,  yersal  for  their  judgments  if  it  were  sitting  as  an  appellate 
court.  But  there  is  always  this  radical  difference  between  an 
appellate  court  sitting  for  the  correction  of  errors  and  a  civil 
court  into  which  the  record  of  a  court-martial  is  collateral — 
in  the  former  there  is  not  a  failure  of  justice;  the  appellate 
court  may  reverse  a  judgment  or  prescribe  another  or  award 
a  new  trial ;  in  the  latter,  the  court  must  either  give  full  effect 
to  the  sentence  or  pronounce  it  wholly  void. 

That  the  judgments  of  courts  martial  acting  within  their  juris- 
diction can  not  be  reviewed  by  civil  courts  for  errors  of.  procedure, 
even  when  such  errors  are  in  direct  contravention  of  statutes,  see 
Ex  parte  Tucker  (212  Fed.  Rep.,  569). 

The  authorities  above  cited  were  applied  in  the  case  of  Ex  parte 
Dickey  (204  Fed  Rep.,  322),  in  which  it  was  held  that: 

Where  a  court-martial  had  jurisdiction  to  try  petitioner 
for  an  offense  against  the  naval  regulations  and  to  impose 
sentence  authorized  thereby,  a  civil  court  in  a  habeas  corpus 
proceeding  could  only  review  the  question  of  jurisdiction,  and 
could  not  pass  on  alleged  errors  of  law  committed  by  the  court- 
martial  or  on  the  severity  of  the  sentence  imposed. 

In  cases  which  do  not  extend  to  the  loss  of  life  or  to  the  dismissal 
of  a  commissioned  or  warrant  officer,  the  Secretary  of  the  Navy 
is  "  the  final  reviewing  authority  provided  by  law  to  act  upon  rec- 
ords of  courts-martial."  (Ex  parte  Dickey,  204  Fed.  Rep.,  322, 
326.)  Where  the  court  was  ordered  by  the  Secretary  of  the  Navy, 
its  sentence  can  not  be  carried  into  effect  until  confirmed  by  him 
(Dynes  v.  Hoover,  20  How.,  81) ;  where  the  court  was  ordered  by 
an  officer  of  the  Navy  vested  with  such  authority,  its  sentence  may 
be  carried  into  execution  on  confirmation  by  such  officer.  (Sec.  1624, 
Revised  Statutes,  art.  53.)  Where  the  sentence  extends  to  loss  of  life, 
or  to  the  dismissal  of  a  commissioned  or  warrant  officer,  it  can  not 
be  carried  into  execution  until  confirmed  by  the  President.  (Sec. 
1624,  Revised  Statutes,  art.  53.)  In  any  of  these  cases,  where  the  sen- 
tence has  been  so  confirmed  by  the  proper  reviewing  officer,  "it 
becomes  final,  and  must  be  executed,  unless  the  President  pardons  the 
offender.  It  is  in  the  nature  of  an  appeal  to  the  officer  ordering  the 
court,  who  is  made  by  the  law  the  arbiter  of  the  legality  and  propriety 
of  the  court's  sentence.  When  confirmed,  it  is  altogether  beyond 
the  jurisdiction  or  inquiry  of  any  civil  tribunal  whatever,  unless  it 
shall  be  in  a  case  in  which  the  court  had  not  jurisdiction  over  the 
subject  matter  or  charge,  or  one  in  which,  having  jurisdiction  over 


62  INSTRUCTIONS  FOR   COURTS  AND  BOARDS. 

the  subject  matter,  it  has  failed  to  observe  the  rules  prescribed  by  the 
statute  for  its  exercise."  (Dynes  v.  Hoover,  20  How.,  81.)  As  to  the 
effect  of  confirmation  of  the  sentence  "by  the  military  tribunal  of 
last  resort,"  see  also  Carter  v.  McClaughry  (183  U.  S.,  401)  and  Ex 
parte  Dickey  (204  Fed.  Rep.,  322,  326). 

.•[II.] 

SUFFICIENCY  OF   CHARGES   AND   SPECIFICATIONS. 

In  accordance  with  the  established  procedure,  naval  courts-martial, 
at  the  outset  of  a  trial,  examine  the  charges  and  specifications  and 
determine  whether  or  not  they  are  "  in  due  form  and  technically 
correct."  The  decision  of  the  court-martial  on  this  point  is  not  sub- 
ject to  review  by  a  civil  court. 

"Where  a  charge  against  a  person  tried  by  a  military  court  is 
within  the  court's  jurisdiction,  and  is  authorized  by  the  Army  or 
Navy  Regulations,  the  manner  of  setting  out  the  offense  is  a  matter 
of  pleading,  rather  than  jurisdiction,  the  sufficiency  of  which  is  for 
the  exclusive  determination  of  the  court-martial."  (Ex  parte 
Dickey,  204  Fed.  Rep.,  322.) 

In  the  case  of  Carter  v.  McClaugfiry  (183  U.  S.,  355,  400),  it  was 
contended  that  the  offense  of  embezzlement  by  an  officer  of  the  Army 
was  erroneously  charged  as  a  violation  of  article  62,  Articles  of 
War  (sec.  1342,  Revised  Statutes),  which  provides  for  the  punish- 
ment of  offenses  "  to  the  prejudice  of  good  order  and  military  disci- 
pline." In  overruling  this  contention,  it  was  stated  by  the  Supreme 
Court : 

We  should  suppose  that  embezzlement  would  be  detrimental 
to  the  service  within  the  intent  and  meaning  of  the  article, 
but  it  is  enough  that  it  was  peculiarly  for  the  court-martial 
to  determine  whether  the  crime  charged  was  "to  the  prejudice 
of  good  order  and  military  discipline."  (Swaim  v.  United 
States,  165  U.  S.,  553;  Smith  v.  Whitney,  116  U.  S.,  178; 
United  States  v.  Fletcher,  148  U.  S.,  84.) 

In  Swaim  v.  United  States,  which  involved  a  sentence  un- 
der the  62d  Article  of  War,  Mr.  Justice  Shiras,  delivering  the 
opinion,  said :  "  But,  as  the  authorities  heretofore  cited  show, 
this  is  the  very  matter  that  falls  within  the  province  of  courts- 
martial,  and  in  respect  of  which  their  conclusions  can  not  be 
controlled  or  reviewed  by  the  civil  courts.  As  was  said  in 
Smith  v.  Whitney  (116  U.  S.,  ITS),  'of  questions  not  depend- 
ing upon  the  construction  of  the  statutes,  but  upon  unwritten 
military  law  or  usage,  within  the  jurisdiction  of  courts-mar- 
tial, military  or  naval  officers,  from  their  training  and  expe- 
rience in  the  service,  are  more  competent  judges  than  the 
courts  of  common  law.  *  *  *  Under  every  system  of 


INSTRUCTIONS  FOR   COURTS  AND   BOARDS.  63 

military  law  for  the  government  of  either  land  or  naval  forces, 
the  jurisdiction  of  courts-martial  extends  to  the  trial  and 
punishment  of  acts  of  military  or  naval  officers  which  tend 
to  bring  disgrace  and  reproach  upon  the  service  of  which  they 
are  members,  whether  those  acts  are  done  in  the  performance 
of  military  duties,  or  in  a  civil  position,  or  in  a  social  relation, 
or  in  private  business.'  " 

Congress  has  expressly  vested  naval  courts-martial  with  jurisdic- 
tion over  "  all  offenses  committed  by  persons  belonging  to  the 
Navy.,"  whether  at  sea  or  on  shore  and  whether  specifically  provided 
for  or  not.  (Sec.  1624,  Revised  Statutes,  arts.  22  and  23.) 


FRAUDULENT   ENLISTMENT. 

Where  disciplinary  proceedings  have  been  commenced  against  an 
enlisted  man  of  the  Navy  on  the  ground  that  he  has  committed  an 
offense  cognizable  by  court-martial,  a  civil  court  is  not  empowered 
to  order  his  release  notwithstanding  the  fact  that  his  enlistment  in 
the  Navy  may  have  been  fraudulent. 

In  the  leading  case  of  In  re  Grimley  (137  U.  S.,  147)  the  peti- 
tioner, after  conviction  of  desertion  by  general  court-martial,  sought 
to  obtain  his  release  on  the  ground  that  his  original  enlistment  in  the 
Army  was  void  because  at  the  time  of  his  enlistment  he  was  over 
the  statutory  age.  In  overruling  this  contention,  the  Supreme  Court 
stated  : 

It  can  not  be  doubted  that  the  civil  courts  may  in  any  case 
inquire  into  the  jurisdiction  of  a  court-martial,  and  if  it  a.p- 
pears  that  the  party  condemned  was  not  amenable  to  its  juris- 
diction, may  discharge  him  from  the  sentence.  And,  on  the 
other  hand,  it  is  equally  clear  that  by  habeas  corpus  the  civil 
courts  exercise  no  supervisory  or  correcting  power  over  the 
proceedings  of  a  court  martial;  and  that  no  mere  errors  in 
their  proceedings  are  open  to  consideration.  The  single  in- 
quiry, the  test,  is  jurisdiction.  That  being  established,  the 
habeas  corpus  must  be  denied  and  the  petitioner  remanded. 
That  wanting,  it  must  be  sustained  and  the  petitioner  dis- 
charged. If  Grimley  was  an  enlisted  soldier  he  was  amenable 
to  the  jurisdiction  of  the  court  martial;  and  the  principal 
question,  the  one  ruled  against  the  Government,  is  whether 
Grimley's  enlistment  was  void  by  reason  of  the  fact  that  he 
was  over  35  years  of  age. 

So  also  in  the  case  of  In  re  Morrissey  (137  U.  S.,  157),  where  the 
petitioner  enlisted  while  under  the  statutory  age  without  the  consent 
of  his  parents  or  guardian,  and  then  deserted,  the  Supreme  Court 


64  INSTRUCTIONS  FOE   COURTS  AND  BOARDS. 

held  that  "he  was  not  only  de  facto,  but  de  jure,  a  soldier — amen- 
able to  military  jurisdiction  ";  that  "  the  age  at  which  an  infant  shall 
be  competent  to  do  any  acts  or  perform  any  duties,  military  or  civil, 
depends  wholly  upon  the  legislature " ;  and  that  the  statutory  re- 
quirement of  consent  in  such  cases  "  is  for  the  benefit  of  the  parent  or 
guardian.  It  means  simply  that  the  Government  will  not  disturb  the 
control  of  parent  or  guardian  over  his  or  her  child  without  consent. 
It  gives  the  right  to  such  parent  or  guardian  to  invoke  the  aid  of  the 
court  and  secure  the  restoration  of  a  minor  to  his  or  her  control ; 
but  it  gives  no  privilege  to  the  minor." 

A  minor  between  the  ages  of  18  and  21  years  may  be  enlisted  in 
the  Navy  without  the  consent  of  his  parents  or  guardian.  (Thomas 
v.  Winn,  122  Fed.  Rep.,  395;  see  also  In  re  Doyle,  18  Fed.  Rep.,  3G9; 
In  re  Norton,  98  Fed.  Rep.,  606.)  This  applies  also  to  enlistments 
of  minors  in  the  Marine  Corps,  which  are  governed  by  the  laws  re- 
lating to  the  Navy.  (See  In  re  Doyle,  18  Fed.  Rep.,  369 ;  and  Elliott 
v.  Harris,  24  App.  D.  C.,  11 ;  overruling  In  re  Shugrue,  3  Mackey, 
324;  and  following  United  States  v.  Dunn,  120  U.  S.,  249.) 

Where  a  minor  under  the  age  of  18  years  enlists  in  the  Navy  or 
Marine  Corps  without  the  consent  required  by  the  statute,  his  release 
will  not  be  ordered  by  a  civil  court,  even  upon  application  of  his 
parents  or  guardian,  where  disciplinary  action  has  been  commenced 
by  the  naval  authorities,  at  least  until  he  has  answered  and  satisfied 
the  charges  pending  against  him.  (United  States  v.  Reaves,  126 
Fed.  Rep.,  127;  Dillingham  v.  Booker,  163  Fed.  Rep.,  696;  16  Ann. 
Cas.,  127;  Ex  parte  Rock,  171  Fed.  Rep.,  240;  see  also  Solomon  v. 
Davenport,  87  Fed.  Rep.,  318;  In  re  Lessard,  134  Fed.  Rep.,  305; 
In  re  Scott,  144  Fed.  Rep.,  79.) 

By  act  of  March  3,  1893  (27  Stat.,  716),  it  was  provided  that 
"  fraudulent  enlistment,  and  the  receipt  of  any  pay  or  allowance  there- 
under, is  hereby  declared  an  offense  against  naval  discipline  and  made 
punishable  by  general  court-martial,  under  article  22  of  the  Articles 
for  the  Government  of  the  Navy." 

• 

[IV.] 

CIVIL  COURTS  CAN  NOT  ORDER  RELEASE  OF  PERSONS  IN  THE  NAVY  UNLESS 

IN  ACTUAL  CUSTODY. 

The  provisions  of  the  Revised  Statutes  of  the  United  States 
"  contemplate  a  proceeding  against  some  person  who  has  the  imme- 
diate custody  of  the  party  detained,  with  the  power  to  produce  the 
body  of  such  party  before  the  court  or  judge,  that  he  may  be  liber- 
ated if  no  sufficient  reason  is  shown  to  the  contrary."  (Wales  v. 
Whitney,  114  U.  S.  574 ;  see  also  McGowan  v.  Moody,  22  App.  D.  C. 
U8.) 


INSTRUCTIONS  FOR   COURT'S  AND  BOARDS.  65 

In  the  case  of  Wales  v.  Whitney,  it  appeared  that  the  petitioner 
was  an  officer  of  the  Navy,  whose  trial  by  general  court-martial  had 
been  ordered  by  the  Secretary  of  the  Navy,  who  had  also  issued  the 
following  order  to  the  petitioner :  "  You  are  hereby  placed  under 
arrest  and  you  will  confine  yourself  to  the  limits  of  the  city  of 
Washington."  The  facts  showed  that  the  petitioner  was  not  under 
"  physical  restraint ;"  and,  as  found  by  the  Supreme  Court,  the  above- 
mentioned  order  did  not  operate  to  restrain  the  movements  of  the 
petitioner  any  more  than  would  have  been  the  case  had  it  directed 
him  to  remain  in  Washington  to  serve  as  a  member 'of  the  court- 
martial.  In  denying  the  petitioner's  right  to  a  writ  of  habeas  corpus 
the  Supreme  Court  stated : 

In  the  case  of  a  man  in  the  militar}^  or  naval  service,  where 
he  is,  whether  as  an  officer  or  a  private,  always  more  or  less 
subject  in  his  movements,  by  the  very  necessity  of  military 
rule  and  subordination,  to  the  orders  of  his  superior  officer,  it 
should  be  made  clear  that  some  unusual  restraint  upon  his 
liberty  of  personal  movement  exists  to  justify  the  issue  of  the 
writ;  otherwise  every  order  of  the  superior  officer  directing 
the  movements  of  his  subordinate,  which  necessarily  to  some 
extent  curtails  his  freedom  of  will,  may  be"  held  to  be  a  re- 
straint of  his  liberty,  and  the  party  so  ordered  may  seek  relief 
from  obedience  by  means  of  a  writ  of  habeas  corpus. 

Something  more  than  moral  restraint  is  necessary  to  make 
a  case  of  habeas  corpus.  There  must  be  actual  confinement 
or  the  present  means  of  enforcing  it. 

The  Supreme  Court  further  stated  that  had  the  petitioner  chosen 
to  disobey  the  Secretary's  order,  "  he  had  nothing  to  do  but  take  the 
next  or  any  subsequent  train  from  the  city  and  leave  it.  There  was 
no  one  at  hand  to  hinder  him.  And  though  it  is  said  that  a  file  of 
marines  or  some  proper  officer  could  have  been  sent  to  arrest  and 
bring  him  back,  this  could  only  be  done  by  another  order  of  the 
Secretary,  and  would  be  another  arrest,  and  a  real  imprisonment 
under  another  and  distinct  order.  Here  would  be  a  real  restraint 
of  liberty,  quite  different  from  the  first.  The  fear  of  this  latter  pro- 
ceeding, which  may  or  may  not  keep  Dr.  Wales  within  the  limits 
of  the  city,  is  a  moral  restraint  which  concerns  his  own  convenience, 
and  in  regard  to  which  he  exercises  his  own  will." 

Var.  1. — In  a  case  where  there  has  not  been  a  trial  by  general  court- 
martial,  omit  Parts  I  and  II  above. 

Var.  2. — In  a  case  in  which  the  validity  of,  the  party'1  s  enlistment  is 
not  questioned,  omit  Part  III  above. 

Var.  3. — //  the  party  has  been  tried  by  court-martial  or  is  in  con- 
finement, omit  Part  IV  above. 


. 


• 


V. 

PRELIMINARY  INVESTIGATION,  ARREST  AND  SUS- 
PENSION, AND  CONFINEMENT  REFORE  TRIAL. 


67 


Taan        >ITA;> 

aiMMamM)'  : 


PRELIMINARY  INVESTIGATION,  ARREST  AND  SUSPEN- 
SION, AND  CONFINEMENT  BEFORE  TRIAL. 

NOTE. — The  following  extracts  from  the  Navy  Regulations,  1913,  are  collected 
in  the  present  chapter  by  reason  of  their  relation  to  the  administration  of 
naval  courts  and  boards  and  for  the  purpose  of  affording  a  convenient  means 
of  reference  thereto.  They  in  no  way  supersede  the  articles  of  the  Regulations 
referred  to,  and,  in  the  event  of  future  change  in  any  of  said  articles,  the 
sections  of  this  chapter  affected  should  be  changed  accordingly. 

34.  Inquiry  into  complaints  of  misconduct. — In  order  to  avoid  un- 
necessary recourse  to  courts  of  inquiry  and  general  courts-martial,  it 
is  directed  that  where  an  officer  or  other  person  shall  be  reported  for 
grave  misconduct  to  his  immediate  commanding  officer,  the  latter 
shall  institute  a  careful  inquiry  into  the  circumstances  on  which  the 
complaint  is  founded.     He  shall  call  upon  the  complainant  for  a 
written  statement  of  the  case,  together  with  a  list  of  his  witnesses, 
mentioning  where  they  may  be  found  and  a  memorandum  of  any 
documentary  evidence  bearing  upon  the  case  which  may  be  obtain- 
able.   R^1404  (1). 

35.  When  accusation  is  against  officer. — "Whenever  an  accusation  is 
made  against  an  officer,  either  by  report  or  by  indorsement  upon  a 
communication,  a  copy  of  such  report  or  indorsement  shall  be  fur- 
nished him  at  the  time.    R-1409. 

36.  An  accused  person  to  be  given  opportunity  to  reply. — He   (the 
commanding  officer  of  an  accused  person)  shall  also  call  upon  the 
accused  for  such  counter  statement  or  explanation  as  he  may  wish 
to  make,  and  for  a  list  of  the  persons  he  desires  to  have  questioned 
in  his  behalf.    If  the  accused  does  not  desire  to  submit  a  statement, 
he  shall  set  forth  that  fact  in  writing.    R-1404  (2) . 

It  is  to  be  noted  in  connection  with  the  above  that  a  commanding  officer  can  not 
"legally  compel  any  subordinate  under  his  command  to  make  a  statement  relative  to 
accusations  against  such  subordinate."  (C.  M.  O.  7,  1914,  15.)  Thus,  the  right  of 
silence  or  refusal  to  criminate  oneself  is  accorded  to  a  person  whose  conduct  is  the 
subject  of  preliminary  investigation  as  well  as  to  a  witness  or  accused  at  a  trial. 

37.  Minor  offenses. — In  the  infliction  of  punishment  upon  enlisted 
men  for  lesser  offenses,  officers  who  are  so  authorized  should  in  ordi- 
nary cases  resort  to  the  authority  conferred  upon  them  by  the  pro- 
visions of  article  24  of  the  Articles  for  the  Government  of  the  Navy 
instead  of  convening  summary  courts-martial  or  deck  courts  for  the 
trial  thereof.     The  certainty  of  prompt  punishment  is  more  con- 
ducive to  discipline  than  punishment  deferred  long  after  the  offense. 
R-1404  (3). 

69 


70  INSTRUCTIONS  FOR  COURTS  AND  BOARDS. 

38.  Reports  and  complaints  to  be  temperate  in  language. — Officers 
making  reports  or  complaints  shall  confine  themselves  exclusively 
to  facts;  and  statements  submitted  in  reply  to  or  in  explanation 
thereof  must  be  couched  in  temperate  language  and  relate  specifically 
to  the  matters  referred  to  therein.     Officers  to  whom  such  reports 
or  complaints  are  submitted  for  statement  must  not  reply  by  mak- 
ing counter  charges.     Officers  desiring  to  prefer  counter  charges 
against  others  should  make  them  independently.    Opinions  must  not 
be  expressed  nor  the  motives  of  others  impugned.    R-1405. 

39.  Cases  not  requiring  trial. — If,  after  the  investigation  of  a  report 
against  an  officer  or  other  person  in  the  Navy,  the  commanding  offi- 
cer shall  not  deem  the  offense  one  requiring  the  action  either  of  a 
court  of  inquiry  or  court-martial,  he  shall  himself  take  such  action 
as  he  may  think  necessary  within  the  limits  of  punishment  allowed 
him  by  law.     R-1406.     (But  see  in  this  connection  General  Order 
No.  277.) 

40.  Cases  requiring  trial. — If,  upon  such  investigation,  the  com- 
manding officer  shall  be  satisfied  that  the  charge  is  such  as  to  call 
for  judicial  action,  he  may  place  the  accused  under  suspension  or 
in  confinement,  as  the  case  may  require,  neither  of  which,  however, 
shall  be  considered  as  a  punishment.     He  shall  transmit  to  the 
Secretary  of  the  Navy,  through  the  Bureau  of  Navigation,  or,  in 
the  case  of  officers  or  enlisted  men  of  the  Marine  Corps,  through  the 
commandant  of  the  Marine  Corps,  or  to  [such  superior  officer  as  may 
be  authorized  to  convene  general  courts-martial],  as  the  case  may 
require,  a  letter  reporting  fully  and  accurately  in  detail  and  in  the 
order  of  their  occurrence  the  circumstances  on  which  the  charge,  or 
charges,  may  be  founded,  and  when  the  words  constitute  the  sub- 
stance of  the  offense,  those  used  are  to  be  set  forth  as  fully  and 
exactly  as  possible  in  the  letter.    The  letter  is  not  in  any  way  to  refer 
to   accompanying   reports   for  the  circumstances   constituting  the 
offense,  but  is,  in  itself,  to  be  so  circumstantial  as  to  afford  a  full 
account  of  the  real  nature  and  extent  of  the  offense  charged  and  of 
the  allegations  to  which  the  offender  would  be  held  to  confess  should 
he  plead  guilty.    R-1407. 

41.  Charges  not  to  be  held  back  to  accumulate, — Offenses  shall  not  be 
allowed  to  accumulate  in  order  that  sufficient  matter  may  thus  be 
collectively  obtained  for  a  trial,  without  giving  due  notice  to  the 
offender.    R-1411. 

42.  Further  proceedings. — Should  the  Secretary  of  the  Navy,  com- 
mander in  chief,  or  [other  competent  superior  officer]  decide  that  no 
trial  is  to  take  place,  the  accused  shall  be  at  once  released  and  re- 
stored to  duty,  unless  such  superior  authority  otherwise  directs.    But 
if  it  be  decided  that  the  accused  shall  be  brought  to  trial,  the  court 
shall  be  assembled  for  that  purpose  as  soon  as  the  nature  of  the  case 
and  the  interests  of  the  public  service  will  allow,  unless  meanwhile 


INSTRUCTIONS   FOE   COURTS  AND  BOARDS.  71 

such  information  or  explanation  shall  reach  the  convening  authority 
as  to  render  it  advisable  to  withdraw  the  charges  and  restore  the 
accused  to  duty.  When  a  trial  has  been  decided  upon  the  accused 
shall,  as  soon  as  practicable,  be  furnished  with  a  copy  of  the  charges 
and  specifications  and  at  the  same  time  be  placed  formally  under 
arrest  for  trial.  R-1408  (1)  and  (2). 

The  Articles  for  the  Government  of  the  Navy  provide  for  two  arrests — one  in  an  emer- 
gency, with  a  view  to  a  preliminary  examination,  and  the  other  an  arrest  for  trial.  The 
copy  of  the  charges  referred  to  in  the  ahove  section  and  in  article  43,  A.  G.  N.,  is  to  be 
furnished  the  accused  at  the  time  of  his  arrest  for  trial,  and  not  upon  arrest  in  the  first 
instance.  (19  Op.  Atty.  Gen.,  472.) 

43.  Purpose  and  time  of  arrest. — The  placing  of  an  officer  or  enlisted 
man  under  arrest  to  await  trial  by  court-martial  is  to  insure  his  pres- 
ence at  the  trial  and  to  give  him  a  reasonable  opportunity  to  prepare 
his  defense.    In  general,  the  accused  shall  not  be  placed  under  arrest 
until  just  prior  to  the  trial,  except  when  it  may  be  advisable  as  a 
precaution  against  his  escape  or  to  enable  him  to  prepare  his  defense, 
or  when,  owing  to  the  nature  of  the  offense  and  the  character  or 
condition  of  the  accused,  his  confinement  is  necessary  in  the  interests 
of  good  order  and  discipline.    In  all  cases  of  confinement  it  shall  be 
no  more  rigorous  than  the  circumstances  require.    R-1416. 

44.  Placing  an  officer  under  arrest. — An  officer,  when  placed  under 
arrest,  either  as  a  punishment  or  to  await  further  disciplinary  action, 
shall   deliver  up   his  sword,  through  the  arresting  officer,  to   the 

commanding  officer  of  the  ship  [or  other  competent  authority]. 
R-1417  /-j\ 

V     /  * 

45.  Limits  of  arrest. — He  (officer  under  arrest)  shall  confine  himself 
to  the  limits  assigned  him  at  the  time  of  his  arrest  or  afterwards, 
under  pain  of  dismissal  from  the  service.    .R-1417  (2). 

46.  Officer  under  arrest  shall  not  visit  commanding  officer. — He  (offi- 
cer under  arrest)  shall  not  visit  his  commanding  or  other  superior 
officer  officially  unless  sent  for;  but  in  case  of  business  requiring 
attention,  he  shall  make  it  known  in  writing.    R-1417  (3). 

47.  Officer  suspended  from  duty. — An  officer  suspended  from  duty 
shall  confine  himself  to  the  limits  assigned  him  at  the  time  of  his 
suspension  or  afterwards,  and  his  failure  to  do  so  shall  be  regarded 
as  a  breach  of  arrest.    R-1418. 

48.  Confinement  or  restraint. — An  officer  placed  under  arrest  or  sus- 
pension on  board  ship  shall  not  be  confined  to  his  room  or  restrained 
from  the  proper  use  of  any  part  of  the  ship  to  which  before  his  arrest 
or  suspension  he  had  a  right,  except  the  quarter-deck,  poop,  and 
bridges,  unless  such  confinement  or  restraint  shall  be  necessary  for 
the  safety  of  the  ship  or  of  the  officer  or  for  the  preservation  of  good 
order  and  discipline ;  but  such  confinement  shall  not  be  imposed  for  a 
longer  time  than  absolutely  necessary.    Similarly,  at  a  naval  station 


72  INSTRUCTIONS   FOR   COURTS  AND  BOARDS. 

or  other  place  on  shore,  the  confinement  or  restraint  imposed  shall  not 
be  unduly  rigorous.    R-1419. 

49.  Officer  under  arrest  or  suspension  shall  not  leave  State  or  Terri- 
tory.— An  officer  under  arrest  or  suspension  shall  not  leave  the  State 
or  Territory  of  which  he  is  a  resident^  nor  visit  the  Navy  Depart- 
ment, without  authority  from  the  Secretary  of  the  Navy.     R-1526. 

50.  Officers  in  arrest  can  not  insist  on  being  tried.— No  officer  can 
demand  a  court-martial  on  himself,  or  on  any  other  person,  or  persist 
in  considering  himself  under  the  restraint  of  arrest  after  he  has  been 
released  by  proper  authority,  or  refuse  to  return  to  duty.    R-1421. 

51.  Confinement  of  enlisted  men  awaiting  trial. — When  an  enlisted 
man  is  confined  for  a  longer  time  than  10  days  to  await  trial  by 
court-martial,  the  commanding  officer  shall  keep  in  view  the  fact 
that  his  confinement  is  protracted  simply  to  insure  the  appearance 
of  the  prisoner  before  the  court  by  which  he  is  to  be  tried.     He  should 
not,  therefore,  be  subjected  to  greater  rigor  than  is  necessary  to 
effect  that  object.    R-1426.     (As  to  the  use  of  irons  for  this  purpose, 
see  act  of  Feb.  16,  1909,  quoted  under  article  30,  A.  G.  N.) 

52.  Temporary  release  of  an  officer  under  suspension  or  arrest. — The 
commanding  officer  of  a  ship  or  other  competent  authority  may  re- 
lease temporarily  and  put  on  duty  an  officer  under  suspension  or 
arrest  should  an  emergency  of  the  service  or  other  sufficient  cause 
make  such  measure  necessary.     The  order   for  temporary  release 
shall  be  in  writing  and  shall  assign  the  reasons.     Should  the  officer 
be  under  charges,  they  need  not  be  withdrawn ;  and  such  temporary 
release  and  restoration  to  duty  shall  not  be  a  bar  to  any  subsequent 
investigation  or  trial  of  the  case  that  the  convening  authority  may 
think  proper  to  order,  nor  to  the  investigation  of  any  complaint  the 
accused  may  make  in  regard  to  the  suspension  or  arrest.    R-1410. 


VI. 
CHARGES  AND  SPECIFICATIONS. 


73 


• 

CHAKGES  AND  SPECIFICATIONS. 

53.  Definition. — A   charge,   in   naval   law,   designates  an  alleged 
offense  in  general  terms,  while  the  specification  sets  forth  the  facts 
constituting  the  same. 

54.  Powers  of  convening  authority  in  framing  the  charges. — It  is 
entirely  within  the  discretion  of  the  officer  empowered  to  convene  a 
court-martial  to  direct  what  portions  of  the  complaint  against  an 
accused  shall  be  charged  against  him.     When  the  competent  officer 
has  decided  to  have  a  person  tried  by  general  court-martial,  he  shall 
cause  charges  and  specifications  against  the  offender  to  be  prepared, 
and  transmit  a  true  copy  of  them,  with  an  order  for  the  arrest  or 
confinement  of  the  accused,  to  the  proper  officer,  who  shall  deliver 
such  order  to  the  accused,  together  with  the  copy  of  the  charges  and 
specifications,  at  the  same  time  formally  notifying  him  that  he  is  put 
under  arrest,  and  if  an  officer,  shall  receive  his  sword.     (See  sections 
41,  48,  and  49.) 

55.  Alterations  in  the  charges  and  specifications. — After  a  charge  has 
been  signed  by  the  proper  authority  and  ordered  to  be  investigated, 
it  is  not  competent  for  any  person  to  make  alterations  therein  without 
first  having  obtained  the  consent  of  such  authority,  except  that  the 
judge  advocate  may,  with  the  approval  of  the  court,  correct  manifest 
clerical  errors.     (See  section  56.)     If  a  court-martial  considers  other 
alterations  necessary  in  a  charge  or  specification  laid  before  it,  the 
same  must  be  submitted  for  the  approval  of  the  authority  by  whom 
the  original  charge  was  sanctioned  previous  to  the  arraignment  of 
the  accused.    (See  p.  370.) 

56.  Errors  in  charges  and  specifications  are  of  three  classes. —  (1)  Cleri- 
cal errors;   (2)  technical  errors  other  than  clerical;   (3)   errors  in 
substance. 

(1)  Clerical  errors  are  those  of  spelling,  punctuation,  etc.,  correc- 
tion of  which  does  not  alter  facts.     Such  errors  may,  with  the  ap- 
proval of  the  court,  be  corrected  by  the  judge  advocate.    Under  such 
circumstances  the  correction  shall  be  neatly  made  in  red  ink  and 
initialed,  where  made,  by  the  judge  advocate. 

(2)  Technical  errors  are  those  which  the  charges  and  specifications 
disclose,  and  which  would  be  sufficient  to  sustain  an  objection  by  the 

26450°— 17 6  75 


76  INSTRUCTIONS  FOR  COURTS  AND  BOARDS. 

accused,  such  as  uncertainty  as  to  the  time  or  place  of  occurrence  of 
the  alleged  offense,  name  of  accused  misspelled,  etc.  It  is  not  within 
the  discretion  of  the  judge  advocate,  the  court,  or  any  other  party 
to  correct  technical  errors  in  the  charges  and  specifications  without 
the  consent  of  the  convening  authority.  If  the  court  is  in  doubt  as 
to  whether  an  error  in  the  charges  and  specifications  is  clerical  or 
technical,  it  should  treat  it  as  a  technical  error  and  thus  avoid  any 
possibility  of  having  the  case  disapproved  on  a  technicality  of  this 
nature.  If  the  court  decides  that  a  charge  and  specification  contains 
a  technical  error,  it  shall  communicate  immediately  with  the  con- 
vening authority. 

(3)  Errors  in  substance  are  those  of  such  a  nature  as  to  vitiate 
the  entire  proceedings  and  render  them  liable  to  review  by  civil 
tribunals,  such,  for  example,  as  lack  of  jurisdiction  on  the  part  of 
the  court.  It  is  not  within  the  discretion  of  the  judge  advocate,  the 
court,  or  any  oiher  party  to  correct  errors  in  substance  occurring  in 
the  charges  and  specifications  without  the  consent  of  the  convening 
authority.  If  the  court  decides  that  a  charge  and  specification  con- 
tains an  error  in  substance,  it  shall  communicate  immediately  with 
the  convening  authority. 

57.  Amendment  of  defects  in  charges  and  specifications. — Should  the 
convening  power  authorize  the  judge  advocate  to  amend  legal  defects 
in  the  charges  and  specifications  before  the  accused  is  called  on  to 
plead,  it  is  to  be  understood  that  in  so  doing  the  judge  advocate  is 
strictly  responsible  that  the  facts  are  not   changed  or  the  legal 
responsibilities  weakened.    He  shall,  on  every  occasion,  communicate 
to  the  accused  any  alterations  in  the  charges  which  were  delivered  to 
him  at  the  time  of  his  arrest  as  soon  as  possible  after  such  alterations 
shall  have  been  made. 

58.  Additional  charges.— (See  article  43,  A.  G.  N.) 

59.  Trial  in  joinder. — Accused  persons  will  not  be  joined  in  the 
same  charge  and  specification  unless  for  concert  of  action  in  an 
offense.     When  the  convening  authority  does  not  join  the  accused 
in  the  charges  and  specifications,  but  indicates  that  he  desires  them 
tried  separately  by  preferring  separate  charges  and  specifications, 
courts-martial  shall  not  try  them  in  joinder.     If  the   convening 
authority  desires  to  try  men  in  joinder,  he  should  prefer  but  one  set 
of  charges  and  specifications,  and  write  but  one  letter  of  trans- 
mittal. 

60.  Court  not  authorized  to  direct  the  judge  advocate  to  enter  a  nolle 
prosequi. — A  nolle  prosequi   (or  withdrawal  or  discontinuance)    is 
"  an  entry  made  on  the  record  by  which  the  prosecutor  or  plaintiff 
declares  that  he  will  proceed  no  further."     (2  Bouvier,  503.)     After 
charges  have  been  formally  referred  by  competent  authority  to  a 


INSTRUCTIONS   FOE   COURTS  AND  BOARDS.  77 

court-martial  for  trial  the  court  is  not  authorized,  at  its  discretion 
and  upon  its  own  motion,  to  strike  out  a  charge  or  specification,  or 
to  direct  or  permit  the  judge  advocate  to  drop  or  withdraw  such 
charge  or  specification,  or  to  enter  a  nolle  prosequi  as  to  the  same. 
For  such  action  the  authority  of  the  convening  officer  is  necessary. 
(C.  M.  O.  42, 1914,  6.)  See  p.  371. 

61.  Duplication   of   charges. — The  law   permits   as  many   charges 
to  be  preferred  as  are  necessary  to  provide  for  every  possible  con- 
tingency in  the  evidence.    Where  the  offense  falls  apparently  equally 
within  the  scope  of  two  or  more  articles  of  the  Articles  for  the  Gov- 
ernment of  the  Navy,  or  where  the  legal  character  of  the  offense 
can  not  be  precisely  known  or  defined  until  developed  by  the  proof, 
it  is  quite  proper  in  important  cases  to  specify  the  offense  under 
two  or  more  charges.     There  is  no  rule  of  law  that  prohibits  the 
formulation  of  the  same  charge  under  more  than  one  article.     (C. 
M.  O.  42,  1914,  7.) 

However,  as  a  matter  of  policy  and  not  as  a  matter  of  law,  the  use 
in  naval  practice  of  two  or  more  charges  is  not  approved  where  the 
identical  facts  are  made  the  basis  of  both  and  where  there  are  no 
aggravating  circumstances  set  forth  under  one  charge  which  dis- 
tinguish it  from  the  other.  (See  C.  M.  O.  45,  1916.)  But,  on  the 
other  hand,  if  a  man  in  absenting  himself  without  leave  also  commits' 
another  offense  in  connection  therewith  which  is  not  covered  by 
the  charge  of  absence  without  leave  or  other  specified  charge, 
then  he  might  properly  be  charged  also  with  conduct  to  the 
prejudice  of  good  order  and  discipline,  or  as  the  case  may  be,  the 
specification  thereunder  indicating  the  distinguishing  nature  of  the 
offense.  An  example  of  such  a  case  would  be  when  a  man  absents 
himself  without  leave  and  remains  absent  in  order  to  avoid  an  evo- 
lution as  coaling  ship,  landing  force,  etc.  The  offense  of  evading 
the  coaling  ship,  landing  force,  etc.,  might  properly  be  covered  by 
the  charge  of  conduct  to  the  prejudice  of  good  order  and  discipline. 
(C.  M.  O.  5,  1914,  7.) 

62.  Offense  charged  by  statement  of  material  facts,—-An  offense  is 
charged  by  the  statement  of  the  material  facts  which  constitute  it, 
and  not  by  the  statement  of  a  mere  conclusion  of  law.     Thus,  if 
it  is  desired  to  charge  a  man  with  having  committed  the  crime  of 
theft,  the  specification  should  set  forth  the  acts  upon  which  the 
charge  is  based  and  not  merely  allege  that  theft  was  committed  by 
such  man  at  a  certain  time  and  place.     (To  this  well-recognized  rule 
there  are  what  might  be  considered  as  exceptions  in  the  cases  of 
certain  charges  such  as  "  desertion  "  and  "  assault."     For  example, 
in  the  specification  of  a  desertion  charge  it  is  alleged  that  an  accused 
has  "  deserted  "  and  not,  as  would  seem  proper,  that  he  "  was  absent 
without  authority  with  intention  permanently  to  abandon  the  naval 


78  INSTRUCTIONS  FOR   COURTS  AND  BOARDS. 

service."  This  can  only  be  explained  on  the  historical  ground  that 
such  terms  as  "  desertion  "  and  "  assault "  have  grown  to  be  considered 
as  descriptive  of  acts  rather  than  expressive  of  conclusions.)  How- 
ever, the  insertion  of  a  conclusion  of  law  in  a  specification,  where 
desired  for  the  sake  of  particularity,  is  permissible,  but  such  con- 
clusion adds  nothing  to  the  complaint,  which  rests  upon  the  state- 
ment of  facts.  Thus,  while  it  is  customary  in  drav/ing  up  specifica- 
tions on  the  charge  of  neglect  of  duty  and  similar  charges  to  allege 
that  the  accused  "  did  therein  and  thereby  neglect  his  duty,"  etc.,  yet 
the  statement  of  such  conclusion,  although  desirable  for  the  sake  of 
particularity,  is  not  essential  to  the  specification.  (See  C.  M.  O. 
4,  1914.) 

63.  Facts  alleged  in  a  specification  must  constitute  an  offense  of  which 
cognizance  can  be  taken. — A  specification  must,  on  its  face,  allege 
facts   which    constitute   a   violation    Of    some    law,    regulation,    or 
custom   of   the   service   in   order  to   charge   an   offense   of   which 
judicial  notice  can  be  taken.     For  example,  it  has  been  held  that  a 
specification,  which  merely  alleged  that  an  accused  enlisted  man 
made  a  statement  in  inelegant  language  expressing  what  would  be 
his  opinion  of  another  enlisted  man  under  certain  conditions,  was 
defective  in  that  it  charged  no  offense  of  which  a  court  could  take 
cognizance.     In  order  that  cognizance  may  be  taken  of  an  offense 
not  in  violation  of  a  law,  general  regulation,  or  well-known  custom 
of  the  service,  such  offense  must  be  alleged  with  particularity.     Thus, 
if  it  is  desired  to  charge  a  violation  of  a  special  order  local  to  some 
particular  ship  or  station,  the  specification  should  show  that  the  facts 
constituted  a  violation  of  such  special  order.     (See  C.  M.  O.  33, 
1914,  6-7.) 

64.  Charges  and  specifications  to  be  succinct. — In  drawing  up  the 
charges  and  specifications,  all  extraneous  matter  is  to  be  carefully 
avoided,  and  nothing  shall  be  alleged  but  that  which  is  culpable  and 
which  the  prosecution  is  prepared  to  substantiate  before  a  court- 
martial. 

65.  Different  offenses  the  subject  of  distinct  charge  and  specification. — 
Offenses  of  a  perfectly  distinct  nature  must  not  be  included  in  one 
and  the  same  charge  and  specification  of  a  charge,  but  each  offense 
of  a  different  kind  shall  be  made  the  subject  of  a  distinct  charge  and 
specification.     Different  offenses  of  the  same  kind,  however,  should 
be  alleged  in  separate  specifications  under  one  charge. 

66.  Not  necessary  to  refer  to  statute  or  article. — It  is  not  necessary 
to  specify  in  a  charge  that  an  offense  was  committed  in  breach  of 
any  particular  statute,  article  of  the  Articles  for  the  Government 
of  the  Navy,  or  general  regulation,  but  whenever  the  allegation  comes 
directly  under  any  enactment  or  regulation,  it  shall  be  set  forth 
in  the  terms  used  therein.    (See  sec.  110.) 


INSTRUCTIONS  FOB  COURTS  AND  BOARDS.  79 

67.  Offenses  not  specifically  provided  for,  how  charged. — When  an 
offense  is  a  neglect  or  disorder  not  specially  provided  for,  it  shall  be 
charged  as  "scandalous  conduct  tending  to  the  destruction  of  good 
morals,"  or  "  conduct  to  the  prejudice  of  good  order  and  discipline." 
But  when  the  offense  is  one  specifically  provided  for  it  is  properly 
chargeable  under  the  specific  charge,  and  not  under  a  general  charge. 
See  section  61. 

68.  Certain  abbreviations  authorized. — Dates  and  time  may  be  ex- 
pressed in  figures.     The   following   abbreviations   are   authorized : 
"U.  S.  S."  for  "United  States  Ship;"  "  U.  S.  Navy"  for  "United 
States  Navy;"  "U.  S.  Marine  Corps"  for  "United  States  Marine 
Corps;"  "U.  S.  Army"  for  "United  States  Army;"  "a.  m."  and 
"  p.  m."  for  "  antemeridian  "  and  "  postmeridian,"  respectively ;  Chris- 
tian names  other  than  the  first  may  be  indicated  by  initial  letters. 

12.30  a.  m.  and  12.30  p.  m.  shall  be  used  to  indicate  30  minutes  after 
midnight  and  30  minutes  after  meridian,  respectively.  The  expres- 
sion "30  minutes  a.  m."  is  ambiguous,  and  shall  not  be  used. 

Sums  of  money  mentioned  in  specifications  should  be  set  out  in 
both  words  and  figures. 

Except  as  indicated  in  this  section,  the  use  of  figures  or  abbrevi- 
ations in  charges  or  specifications  is  prohibited. 

69.  Intent  should  be  expressed  by  technical  word  prescribed, — In  cases 
where  the  law  has  adopted  certain  expressions  to  show  the  intent 
with  which  an  offense  is  committed,  the  intent  shall  be  expressed 
by  the  technical  word  prescribed,  as  "  wilfully,"  "  knowingly,"  "  cor- 
ruptly," "maliciously,"  "intentionally,"  "wrongfully."     Certain  of 
the  foregoing  words  appear  in  the  Articles  for  the  Government  of 
the  Navy  and  should  be  used  to  express  fully  the  offense  charged. 
For  example,  a  charge  made  against  an  officer  for  making  or  for 
signing  a  false  muster  must  be  laid  to  have  been  done  "  knowingly." 
Where  the  offense  charged  is  that  of  unlawfully  having  intoxicants, 
drugs,  or  property  of  another  in  possession,  it  is  essential  to  specify 
that  the  possession  was  "  unlawful." 

70.  Where  higher  criminality  attaches  to  acts  under  particular  circum- 
stances.— In  all  cases  in  which  the  law  attaches  higher  criminality 
to   acts  committed   under  particular  circumstances,   the   act   must, 
to  bring  the  person  within  the  higher  degree  of  punishment,  be 
charged  to  have  been  committed  under  those  circumstances,  which 
must  be  stated  with  certainty  and  precision.    For  instance,  the  limi- 
tations of  punishment  permit  of  a  higher  degree  of  punishment  for 
desertion  "  in  case  of  apprehension  or  delivery  to  naval  authorities  " 
than  "in  case  of  surrender  to  naval  authorities."    If,  therefore,  it 
is  desired  to  bring  an  offender  within  the  higher  degree,  the  "  appre- 
hension or  delivery  to  naval  authorities  "  must  be  alleged. 


80  INSTRUCTIONS  FOB  COURTS  AND  BOARDS. 

71.  The  specifications  of  each  charge,  one  or  more,  must  be  brief,  clear, 
and  explicit. — The  facts,  circumstances,  and  intent  constituting  the 
offense  must  be  set  forth  with  certainty  and  precision  and  the  accused 
charged  directly  and  positively  with  having  committed  it.     Each 
specification  of  a  charge  must  set  forth  facts  sufficient  to  constitute 
the  particular  offense  charged. 

72.  Certainty  as  to  the  party  accused. — The  accused  must  be  described 
by  his  title  and  rank,  or  rating,  Christian  name  and  surname,  written 
at  full  length,  with  the  addition  of  his  vessel  or  service  at  the  time  the 
offense  with  which  he  is  charged  took  place. 

73.  Allegations  as  to  time  and  place. — The  time  and  place  of  the 
commission  of  the  offense  charged  must  be  averred  in  the  speci- 
fication.    They  must  be  stated  with  sufficient  precision  to  clearly 
identify  the  offense  and  enable  the  accused  to  understand  what  par- 
ticular act  or  omission  he  is  called  upon  to  defend.     For  this  pur- 
pose, save  in  cases  where  time  or  place  is  of  the  essence,  a  reasonably 
exact  allegation  of  the  time  and  place  is  sufficient,  the  degree  of 
exactness  required  being  that  necessary  to  insure  the  identification 
of  a  particular  offense.     It  is,  therefore,  proper  pleading  to  allege 
in  a  specification  that  a  certain  offense  occurred  "on  or  about"  a 
certain  day  "  at  or  near  "  a  certain  place,  or,  if  necessary  to  be  more 
explicit  as  to  the  time,  "  at  or  about "  a  certain  hour.     There  is  no 
definite  construction  which  can  be  placed  upon  the  phrases  "  on  or 
about,"  etc.,  as  used  in  the  allegations  as  to  time  and  place  in  a 
specification,  but  these  phrases  must  be  construed  reasonably  by  a 
court  in  the  light  of  the  circumstances  of  each  particular  case.     This 
latitude,  however,  is  not  allowed  in  cases  where  time  or  place  are  of 
the  essence.     If,  for  example,  an  enlisted  man  is  charged  with  the 
offense  of  absenting  himself  without  authority  from  his  ship  on  a 
day  on  which  the  "  all  hands "  evolution  of  coaling  ship  was  per- 
formed in  support  of  a  charge  of  conduct  to  the  prejudice  of  good 
order  and  discipline,  then  time  is  of  the  essence  of  the   offense 
charged  and  a  variation  between  the  date  on  which  the  unauthorized 
absence  is  alleged  and  the  date  on  which  the  "  all  hands  "  evolution 
was  performed  would  make  the  specification  defective. 

When  the  geographical  location  of  a  ship  is  not  material  to  a 
complete  description  of  an  offense,  such  as  theft  of  another's  clothing 
or  any  other  act  committed  wholly  on  board,  such  geographical  loca- 
tion need  not  be  alleged  in  the  specification.  An  exception  to  this, 
however,  is  to  be  noted  in  the  charge  of  murder,  the  specification 
of  which  charge  must  specify  the  location  of  a  ship  on  board  which 
this  crime  has  been  committed  at  the  time  of  its  commission  in  order 
that  the  trial  and  punishment  of  this  offense  may  come  within  the 
provisions  of  article  6  of  the  Articles  for  the  Government  of  the 


INSTRUCTIONS  FOR  COURTS  AND  BOARDS.  81 

Navy,  giving  a  court-martial  jurisdiction  over  this  offense  only  when 
committed  without  the  territorial  limits  of  the  United  States, 

74.  Certainty  as  to  the  person  against  whom  the  offense  was  com- 
mitted.— In  the  case  of  offenses  against  the  person  or  property  of 
individuals,  the  Christian  name  and  surname,  with  the  rank  and 
station  or  duty  of  such  person,  if  he  have  any,  must  be  stated  at 
length,  if  known.     If  not  known,  the  party  injured  must  be  described 
as  a  "  person  unknown." 

75.  Certainty  as  to  facts,  circumstances,  and  intent. — It  is  not  suffi- 
cient that  the  accused  be  charged  generally  with  having  committed 
an  offense,  as,  for  instance,  with  habitual  violation  of  orders  or 
neglect  of  duty,  but  the  particular  acts  or  circumstances  constituting 
a  specific  offense  must  be  distinctly  set  forth  in  the  specification. 
Where  intent  is  an  ingredient  of  the  offense,  it  also  must  be  set  forth 
with  certainty. 

76.  Written  instruments  set  out  verbatim. — Written  instruments,  or 
such  portions  thereof  as  form  part  of  the  gist  of  the  offenses  charged, 
must  be  set  out  verbatim  with  care  and  accuracy. 

77.  When  only  the  substance  of  written  instruments  is  set  out. — 
When  only  the  substance  is  intended  to  be  set  out,  it  should  be  intro- 
duced by  the  words  "  in  substance  as  follows."    The  word  "  tenor " 
implies  that  a  correct  copy  is  set  out. 

78.  Particular  words,  how  set  out. — Where  particular  words  form 
the  gist  of  the  offense,  they  must  be  set  forth  with  particularity  or 
declared  to  be  of  like  meaning  and  purport.     In  cases  where  objec- 
tionable language  forms  the  gist  of  the  offense  the  objectionable 
language  must  be  alleged. 

79.  What  is  to  be  set  forth  in  case  of  perjury. — "  In  prosecutions  for 
perjury  committed  on  examination  before  a  naval  general  court- 
martial,  or  for  subornation  thereof,  it  shall  be  sufficient  to  set  forth 
the  offense  charged  on  the  defendant,  without  setting  forth  the 
authority  by  which  the  court  was  held,  or  the  particular  matters 
brought  before,  or  intended  to  be  brought  before,  said  court."    (R.  S., 
1023. )    It  is  to  be  noted  that  the  above  statute,  which  is  one  regulat- 
ing procedure  only,  prescribes  only  for  "perjury  committed  on  ex- 
amination before  a  naval  general  court-martial."     A   substantive 
statute  (35  Stat.,  1111)  defines  this  offense  as  being  capable  of  com- 
mission by  anyone  "having  taken  an  oath  before  a  competent  tri- 
bunal, officer,  or  person  in  any  case  in  which  a  law  of  the  United 
States  authorizes  an  oath  to  be  administered."     (In  this  connection 
see  C.  M.  O.  51,  1914,  9,  in  which  it  was  held  that  false  testimony 
under  oath  before  a  court  of  inquiry  would  sustain  a  charge  of  per- 
jury.)    If,  therefore,  the  charge  of  this  offense  is  founded  on  false 
testimony  given  before  other  than  a  naval  general  court-martial,  then 


82  INSTRUCTIONS  FOB  COURTS  AND  BOARDS. 

section  1023  of  the  Revised  Statutes  does  not  apply,  and  both  the 
authority  on  which  the  proceedings  before  which  the  alleged  false 
testimony  has  been  given  is  based  and  the  subject  matter  of  such 
proceedings  must  be  set  forth.  The  specification  must  also,  in  any 
event,  include  direct  and  specific  allegations  negativing  the  truth  of 
the  alleged  false  testimony,  together  with  affirmative  averments  set- 
ting up  the  truth  by  way  of  antithesis. 

80.  Theft. — In  drawing  up  a  specification  to  support  the  charge 
of  theft,  care  should  be  taken  to  state,  at  least  approximately,  the 
value  of  the  articles  alleged  to  have  been  stolen,  as  the  degree  of 
punishment  permitted  by  the  prescribed  limitations  varies  in  ac- 
cordance therewith. 

81.  Incompetency. — When  incompetency  is  alleged,  it  is  essential 
to  set  forth  the  particular  acts  or  neglects  upon  which  the  specifica- 
tion is  based.     In  bringing  an  enlisted  man  to  trial  for  incompe- 
tency before  a  summary  court-martial  it  is  necessary  that  more  than 
one  instance  of  such  incompetency  be  alleged. 


SPECIMEN  CHARGES  AND  SPECIFICATIONS. 

XOTE. — In  time  of  war  add  at  the  end  of  each  specification,  or  at  such  other 
part  thereof  as  may  be  appropriate,  the  averment,  "the  United  States  then 
being  in  a  state  of  war." 

Charge. — ABSENCE  FROM  COMMAND  WITHOUT  LEAVE. 

Specification. — In  that  Commander ,  U.  S.  Navy,  be- 
ing in  command  of  the  U.  S.  S. ,  then  in  the  port  of  -  — , 

,  did,  on  or  about  March  15,  1915,  absent  himself  from  said 

command  without  leave,  and  did  remain  so  absent  for  a  period  of 
about  three  days. 

Charge. — ABSENCE    FROM    STATION    AND    DUTY    AFTER    LEAVE    HAD 

EXPIRED. 

Specification. — In  that  Assistant  Surgeon  ,  U.   S. 

Navy,  having  been  granted  leave  of  absence  from  his  station  and  duty 

on  board  the  U.  S.  S. -,  at , ,  to  which  ship  he  had 

been  regularly  assigned,  said  leave  to  expire  on  March  15,  1915,  did 
fail  to  return  to  his  station  and  duty  as  aforesaid  upon  the  expira- 
tion of  said  leave,  and  did  remain  absent  therefrom,  without  leave 
from  proper  authority,  for  a  period  of  about  twenty-four  hours. 

/Specification. — In  that ,  seaman,  U.  S.  Navy,  having 

been  granted  leave  of  absence  from  his  station  and  duty  on  board  the 

U.  S.  S.  ,  at  the  navy  yard, , ,  to  which  ship  he 

had  been  regularly  assigned,  said  leave  to  expire  on  July  21,  1915, 
did  fail  to  return  to  his  station  and  duty  as  aforesaid  upon  the  ex- 
piration of  said  leave,  and  did  remain  absent  therefrom,  without 
leave  from  proper  authority,  for  a  period  of  about  six  days,  at  the 
expiration  of  which  he  surrendered  himself  on  board  the  aforesaid 
ship. 

/Specification. — In  that  —  — ,  musician  second  class,  U.  S. 

Navy,  having,  while  a  general  court-martial  probationer,  been 
granted  leave  of  absence  from  his  station  and  duty  on  board  the 
U.  S.  S. ,  at , ,  to  which  ship  he  had  been  regu- 
larly assigned,  said  leave  to  expire  on  March  22,  1915,  did  fail  to 
return  to  his  station  and  duty  as  aforesaid  upon  the  expiration  of 
said  leave,  and  did  remain  absent  from  the  U.  S.  Navy,  without  leave 
from  proper  authority,  for  a  period  of  about,  four  days,  at  the  expira- 
tion of  which  he  surrendered  himself  at  the  navy  yard,  Washington, 
District  of  Columbia. 

83 


84  INSTRUCTIONS  FOR  COURTS  AND  BOARDS. 

Specification. — In  that  -  — — ,  private,  U.  S.  Marine  Corps, 

having,  while  a  patient  at  the  United  States  Naval  Hospital,  Phila- 
delphia, Pennsylvania,  been  granted  leave  of  absence  from  his  sta- 
tion and  duty  at  said  hospital,  to  which  he  had  been  regularly  as- 
signed, said  leave  to  expire  on  March  15,  1915,  did  fail  to  return 
to  his  station  and  duty  as  aforesaid  at  the  expiration  of  said  leave, 
and  did  remain  absent  from  the  U.  S.  Marine  Corps,  without  leave 
from  proper  authority,  for  a  period  of  about  seven  days,  at  the  ex- 
piration of  which  he  surrendered  himself  on  board  the  U.  S.  S. 

of    

,  dL  , 

Charge. — ABSENCE  FROM  STATION  AND  DUTY  WITHOUT  LEAVK. 

Specification. — In  that  -  — ,  fireman  second  class,  IT.  S. 

Navy,  did,  on  or  about  September  20, 1915,  without  leave  from  proper 
authority,  absent  himself  from  his  station  and  duty  on  board  the 
U.  S.  S.  -  — ,  at , ,  to  which  ship  he  had  been  regu- 
larly assigned,  and  did  remain  so  absent  therefrom  for  a  period  of 
about  six  days,  at  the  expiration  of  which  he  surrendered  himself  on 
board  said  ship. 

Specification. — In  that ,  fireman  third  class,  U.  S. 

Navy,  did,  at  about  7.00  p.  m.,  September  23,  1916,  while  a  summary 
court-martial  probationer,  without  leave  from  proper  authority,  ab- 
sent himself  from  his  station  and  duty  on  board  the  U.  S.  S. , 

at , ,  to  which  ship  he  had  been  regularly  assigned,  and 

did  remain  so  absent  therefrom  for  a  period  of  about  five  hours,  at 
the  expiration  of  which  he  surrendered  himself  on  board  said  ship. 

Specification. — In  that -j ,  private,  U.  S.  Marine  Corps, 

did,  on  or  about  April  16,  1915,  without  leave  from  proper  authority, 
while  enroute  from  the  U.  S.  Marine  Corps  recruiting  station  at 

, ,  to  the  United  States  marine  barracks  at  the  navy 

yard, , ,  to  which  barracks  he  had  been  regularly  as- 
signed, absent  himself  from  the  U.  S.  Marine  Corps,  and  did  remain 
so  absent  from  the  U.  S.  Marine  Corps  and  from  his  station  and 
duty  at  the  aforesaid  barracks  until  he  surrendered  himself  at  the 
said  barracks  on  or  about  April  22, 1915. 

Charge. — AIDING  AND  ENTICING  ANOTHER  TO  DESERT. 

Specification. — In  that ,  private,  U.  S.  Marine  Corps, 

serving  on  board  the  U.  S.  S. ,  then  at  anchor  in  the  harbor 

of  ,  ,  did,  on  January  19,  1913,  in  order  to  persuade 

,  seaman,  U.  S.  Navy,  to  join  him,  the  said ,  in 

an  attempt  to  desert  from  said  ship  and  from  the  United  States 
naval  service,  offer  the  said the  sum  of  ten  dollars  ($10),  law- 
ful money  of  the  United  States,  and  did,  on  the  date  aforesaid,  assist 


INSTRUCTIONS  FOB  COURTS  AND  BOARDS.  85 

the  said  in  deserting  from  the  ship  aforesaid  and  from  the 

U.  S.  Navy  by  arranging  for  and  causing  the  appearance,  at  about 
11.00  p.  m.  on  said  date,  of  a  small  shore  boat  under  gunport  number 
six  of  said  ship,  in  which  boat  the  said  -  — ,  without  permission 
from  lawful  authority,  took  passage  ashore. 

Charge. — ASSAULT. 

(Definition. — "An  unlawful  offer  or  attempt  with  force  or  violence 
to  do  a  corporeal  hurt  to  another" — Bouvier.)  • 

/Specification. — In  that  Carpenter ,  IT.  S.  Navy,  serv- 
ing on  board  the  U.  S.  S.  -       — ,  at  the  navy  yard,  -       — ,  -       — , 
did,  on  or  about  June  23,  .1915,  at  said  navy  yard,  Avilfully,  ma- 
liciously, and  without  justifiable  cause,  assault  Lieutenant  - 
— ,  U.  S.  Navy,  also  serving  on  board  said  ship. 

Specification. — In  that ,  seaman,  U.  S.  Navy,  serving 

on  board  the  U.  S.  S. ,  at  the  navy  yard, , ,  did, 

on  or  about  June  5,  1913,  on  a  public  street  car  in  the  city  of , 

wilfully,  maliciously,  and  without  justifiable  cause,  assault  - 
,  a  civilian  passenger  on  the  aforesaid  car. 

Charge. — ASSAULTING  AND  ATTEMPTING  TO  KILL  ANOTHER  PERSON 

IN  THE  SERVICE. 

Specification. — In  that ,  private,  U.  S.  Marine  Corps, 

did,  on  or  about  December  7,  1915,  in  the  navy  yard, , , 

while  serving  at  the  marine  barracks  at  said  navy  yard,  wilfully, 
maliciously,  and  without  justifiable  cause,  assault  and  shoot  with  a 

loaded  revolver  and  thereby  attempt  to  kill ,  corporal, 

U.  S.  Marine  Corps,  serving  at  said  barracks. 

Charge. — ASSAULTING  AND  STRIKING  ANOTHER  PERSON  IN  THE  NAVY. 

Specification. — In  that ,  fireman  first  class,  U.   S. 

Navy,  serving  on  board  the  U.  S.  S. ,  then  at  the  navy  yard, 

— , ,  did,  on  or  about  June  28,  1915,  in  the  city  of  -       — , 

— ,  wilfully,  maliciously,  and  without  justifiable  cause,  assault 
and  strike ,  seaman,  U.  S.  Navy,  attached  to  said  ship. 

Charge. — ASSAULTING  AND  STRIKING  ANOTHER  PERSON  IN  THE 

SERVICE. 

Specification. — In  that  —  — ,  private,  U.  S.  Marine  Corps, 

a  general  court-martial  prisoner  at  the  naval  prison,  navy  yard, 

— ,  -       — ,  did,  on  February  16,  1915,  at  the  said  naval  prison, 

wilfully,  maliciously,  and  without  justifiable  cause,  assault  and  strike 


86  .        INSTRUCTIONS  FOR  COURTS  AND  BOARDS. 

,  private,  U.  S.  Marine  Corps,  a  prisoner  at  said 

prison. 

Charge. — ASSAULTING  AND  STRIKING  His  SUPERIOR  OFFICER. 

(Note. — Within  the  meaning  of  the  Articles  for  the  Government 
of  the  Navy,  unless  there  ~be  something  in  the  context  or  subject  mat- 
ter repugnant  to  or  inconsistent  with  such  construction,  officers  shall 
mean  commissioned  and  warrant  officers;  superior  officers  shall  ~be 
held  to  include  mates  and  petty  officers  of  the  Navy  and  noncommis- 
sioned officers  of  the  Marine  Corps,  in  addition  to  the  officers  enumer- 
ated. See,  in  this  connection,  C.  M.  O.  5, 1917 ,  9.) 

Specification. — In  that :,  fireman  first  class,  U.  S. 

Navy,  serving  on  board  the  U.  S.  S. ,  at  the  navy  yard,  -       — , 

,  did,  on  or  about  March  7,  1915,  in  the  city  of , , 

wilfully,  maliciously,  and  without  justifiable  cause,  assault  and  strike 

his  superior  officer,  Lieutenant ,  U.  S.  Navy,  serving 

on  board  said  ship. 

Charge. — ASSAULTING  AND  STRIKING  His  SUPERIOR  OFFICER  WHILE 
IN  THE  EXECUTION  OF  THE  DUTIES  OF  His  OFFICE. 

Specification. — In  that  Lieutenant  (junior  grade) , 

IT.  S.  Navy,  serving  on  board  the  U.  S.  S. ,  did,  on  or  about 

April  5,  1915,  in  the  wardroom  of  said  ship,  when  ordered  by  Com- 
mander   ,  U.  S.  Navy,  the  executive  officer  of  said  ship, 

to  get  into  a  proper  uniform,  wilfully,  maliciously,  and  without 

justifiable  cause,  assault  and  strike  the  said  Commander , 

who  was  then  and  there  in  the  execution  of  the  duties  of  his  office. 

Specification. — In  that ,  seaman,  U.  S.  Navy,  a  gen- 
eral court-martial  prisoner  undergoing  confinement  at  the  United 

States  naval  prison,  navy  yard,  -  — ,  — ,  did,  on  or  about 

June  30,  1915,  at  said  prison,  wilfully,  maliciously,  and  without 

justifiable  cause,  assault  and  strike — ,  corporal,  U.  S. 

Marine  Corps,  who,  in  the  execution  of  his  duties  as  corporal  of 
the  guard  at  said  prison,  was  then  and  there  inspecting  the  cells  of 
prisoners  undergoing  solitary  confinement. 

Charge. — ASSAULTING  AND  STRIKING  A  SENTINEL. 

Specification. — In  that ,  seaman,  U.  S.  Navy,  serving 

on  board  the  U.  S.  S.  — ,  did,  on  February  2,  1911,  in  the  vicinity 

of  the  brig  of  the  said  ship ,  wilfully,  maliciously,  and  without 

justifiable  cause,  assault  and  strike ,  private,  U.   S. 

Marine  Corps,  who  was  then  and  there  regularly  on  duty  as  a 
sentinel  on  post  at  said  brig. 


INSTRUCTIONS  FOR   COURTS  AND  BOARDS.  87 

Charge. — ASSAULTING   WITH   A   DEADLY   WEAPON   AND   WOUNDING 
ANOTHER  PERSON  IN  THE  NAVY. 

Specification. — In  that ,  seaman,  U.  S.  Navy,  serv- 
ing on  board  the  U.  S.  S. ,  at  Honolulu,  Territory  of  Hawaii, 

did,  on  July  4,  1915,  in  the  Park  Saloon  in  said  city,  wilfully,  ma- 
liciously, and  without  justifiable  cause,  assault  and  stab  with  a  knife 
or  other  sharp  instrument  and  thereby  wound ,  seaman, 

U.  S.  Navy,  serving  on  board  said  ship. 

• 

Charge. — ASSAULT  WITH  INTENT  TO  COMMIT  RAPE. 

Specification. — In  that  —  — ,  private,  U.  S.  Marine  Corps, 

serving  at  the  marine  barracks,  navy  yard,  —  — ,  —  — ,  did,  on 
or  about  March  9,  1914,  at  the  said  navy  yard,  feloniously,  forcibly, 
and  against  her  will,  assault  one  -  — ,  with  intent  to  com- 

mit the  crime  of  rape  upon  her,  the  said  -  — . 

Charge. — ATTEMPTING  TO  DESERT. 

Specification. — In  that  -  — ,  seaman,  second  class,  U.  S. 

Navy,  serving  on  board  the  U.  S.  S. ,  at  -      — , ,  did, 

on  or  about  October  18, 1916,  endeavor  to  leave  said  ship  by  attempt- 
ing to  jump  overboard  therefrom  with  intent  to  desert  from  said 
ship  and  from  the  U.  S.  Navy. 

Charge. — ATTEMPTING  TO  SUBORN  TESTIMONY  TO  BE  GIVEN  BEFORE  A 

COURT-MARTIAL. 

Specification. — In  that  —  — ,  private,  U.  S.  Marine  Corps, 

serving  on  board  the  U.  S.  S. ,  did,  on  or  about  March  12,  1909, 

on  board  the  said  ship ,  by  offer  of  money,  wilfully  and  with 

corrupt  intent,  incite  and  endeavor  to  persuade  one , 


seaman,  U.  S.  Navy,  stationed  on  the  said  ship, ,  to  appear  in 

the  trial  by  summary  court-martial  of  the  said — ,  and 

then  and  there,  upon  oath,  to  give  false  testimony  at  said  trial. 

Charge. — BREAKING  ARREST. 

Specification. — In  that  -  — ,  quartermaster  third  class, 

U.  S.  Navy,  serving  on  board  the  U.  S.  S. ,  at  the  navy  yard, 

— ,  -  — ,  did,  on  or  about  August  25,  1915,  while  a  prisoner  at 
large  on  board  said  ship  by  lawful  order  of  his  commanding  officer, 

Chief  Boatswain  -  ,  U.  S.  Navy,  break  his  arrest  and 

leave  the  aforesaid  ship  at  the  aforesaid  place. 

Specification. — In  that  —  — ,  private,  U.  S.  Marine  Corps, 

while  being  held  at  the  United  States  marine  barracks,  Washing- 
ton, District  of  Columbia,  as  a  straggler  from  the  U.  S.  S.  -  — ,  to 
which  ship  he  had  been  regularly  assigned,  having  been  placed  under 


88  INSTRUCTIONS   FOK   COURTS  AND  BOARDS. 

the  charge  of  a  sentry  at  said  barracks,  by  lawful  order  of  the  com- 
manding officer  thereof,  did,  on  or  about  September  4,  1915,  break 
his  arrest  and  leave  said  barracks. 

Charge. — CAUSING  TO  BE  PRESENTED  TO  A  PERSON  IN  THE  NAVAL  SERV- 
ICE FOR  APPROVAL.  AND  PAYMENT  A  CLAIM  AGAINST  THE  UNITED 
STATES  KNOWING  SAID  CLAIM  TO  BE  FALSE  AND  FRAUDULENT. 

Specification. — In  that  Naval  Constructor ,  U.  S. 

Navy,  being,  on  or  about  February  1,  1915,  and  continuously  there- 
after until  the  date  hereof,  on  duty  at  the  navy  yard, ,  -  — . 

as  the  head  of  the  department  of at  said  yard,  and  it  being 

part  of  his  duty  as  such  head  of  department  to  supervise  and  control 
all  work  pertaining  to  said  department  and  to  have  general  super- 
intendence, charge,  and  direction  of  all  persons  employed  in 
said  department,  and  it  being  also  a  part  of  his  duty  to  direct  the 
preparation  of  and  to  examine,  and,  if  found  correct,  to  approve, 
the  pay  rolls  of  said  department  prior  to  their  submission  to  the 
commandant  of  said  navy  yard  for  approval  and  transmission  to  the 
pay  officer  at  said  navy  yard,  did  cause  to  be  prepared  a  semi- 
monthly pay  roll  of  persons  employed  in  said  department  of  -  — , 

navy  yard, , ,  for  the  period  from  March  16,  1915,  to 

March  31,  1915,  inclusive,  and  did,  on  or  about  April  10,  1915,  in  his 
official  capacity  as  head  of  said  department,  approve  said  pay  roll 
and  cause  it  to  be  presented  to  and  approved  by  the  commandant  and 
transmitted  to  the  pay  officer  of  the  said  navy  yard,  and  the  amounts 
therein  set  forth,  respectively,  were  paid  to  the  persons  whose  names 

appeared  thereon ;   whereas,   as  he,  the  said  ,  well 

knew,  the  said  pay  roll  contained  the  names  of  a  number  of  laborers 
and  mechanics,  to  wit,  four  hundred  and  forty-nine,  who,  for  work 
performed  during  the  last  six  days  of  March,  between  7.00  a.  m.  and 
meridian,  and  between  12.30  p.  m.  and  6.30  p.  m.,  were  credited,  in 
making  up  the  time  and  amounts  specified  on  said  pay  roll,  with 
having  rendered  one  and  five-eighths  days',  that  is  to  say,  thirteen 
hours',  service,  when,  in  fact,  they  had  thus  rendered  and  were  en- 
titled to  be  credited  with  one  and  three-eighths  days',  that  is  to  say, 
eleven  hours'  service  per  day  only,  in  consequence  of  which  false 
entries  on  said  pay  rolls,  overpayments  to  laborers  and  mechanics 
employed  in  the  department  of  -  -  at  said  navy  yard,  for  the 
period  named,  were  made,  amounting  to  about  one  thousand  four 
hundred  twenty -nine  dollars  and  thirty-three  cents  ($1,429.33) ;  and 

the  said ,  did  therein  and  thereby,  cause  to  be  presented 

to  a  person  in  the  naval  service  for  approval  and  payment  a  claim 
against  the  United  States,  knowing  such  claim  to  be  false  and 

fraudulent. 

. 


INSTRUCTIONS  FOE  COURTS  AND  BOARDS.  89 

Charye. — CONDUCT  TO  THE  PREJUDICE  OF  GOOD  ORDER  AXD  DISCIPLINE. 

(See  sections  61,  67.) 

Specification. — In  that ,  seaman,  U.  S.  Navy,  serving 

on  board  the  U.  S.  S. ,  at  the  navy  yard, , ,  did, 

on  February  2, 1915,  upon  returning  to  said  ship  from  liberty,  unlaw- 
fully have  in  his  possession  a  flask  containing  intoxicating  liquor. 

/Specification. — In  that ,  seaman,  U.  S.  Navy,  serving 

on  board  the  U.  S.  S.  ,  did,  on  or  about  February  19,  1915, 

on  board  said  ship,  referring  to ,  chief  boatswain's 

mate,  U.  S.  Navy,  attached  to  said  ship,  say,  in  the  presence  of  one 

or  more  other  enlisted  men  of  the  Navy,  "  We'll  get yet  and 

make  him  pay  for  what  he  has  done,"  or  words  to  that  effect,  meaning 

that  he  would  compromise  or  otherwise  injure  the  said  in 

retaliation  for  an  act  or  acts  performed  by  the  said  in  the 

execution  of  the  duties  of  his  office. 

/Specification. — In  that ,  private,  U.  S.  Marine  Corps, 

serving  at  the  marine  barracks,  navy  yard, , ,  did,  on 

August  30,  1915,  attempt  to  smuggle  into  said  navy  yard  two  bottles 
containing  intoxicating  liquor. 

/Specification. — In   that   ,  electrician   second   class, 

U.  S.  Navy,  serving  on  board  the  U.  S.  S. ,  did,  on  or  about 

October  21,  1915.  on  board  said  ship,  unlawfully  have  cocaine  in 
his  possession. 

Specification. — In  that  Lieutenant ,  U.  S.  Navy,  serv- 
ing on  board  the  U.  S.  S. ,  was,  on  or  about  September  1, 

1915,  on  board  said  ship,  from  previous  indulgence  in  intoxicating 
liquors,  incapacitated  for  a  proper  performance  of  his  duties  to  such 
an  extent  as  to  necessitate  his  being  placed  on  the  sick  list. 

Specification. — In  that , 'baker  second  class,  U.  S. 

Navy,  then  serving  on  board  the  U.  S.  S. ,  at , , 

did,  on  or  about  June  27,  1915,  write  and  cause  to  be  delivered  to 

,  a  chief  yeoman  in  the  U.  S.  Navy,  serving  at  the 

United  States  Naval  Training  Station, -, ,  a  letter  in  the 

words  and  figures  following,  to  wit : 

"  BOSTON,  MASS.,  June  27,  1915. 

"DEAR  SHIPMATE:  Having  plenty  of  leisure  this  evening,  allow 
me  to  drop  you  a  few  lines,  asking  you  for  a  great  favor.     Now, 

you  see,  I  have  my  family  living  at ,  a  few  miles  south  of  the 

training  station,  and  I  want  to  get  back  to  that  station  some  way. 
Could  you  find  out  when  the  next  vacancy  occurs  at  that  station  in 
the  commissary  department,  as  I  hear  there  will  be  a  2nd  class  baker 
leaving  for  sea  soon,  and  I  promise  you  $10.00  if  you  work  it  for 
me  to  get  back  there  some  way?  Something  in  it,  and  if  I  put  in 
my  request  next,  month  for >  kindly  keep  your  eyes  open. 


90  INSTRUCTIONS  FOE  COURTS  AND  BOARDS. 

"Trusting  you  will  take  the  matter  under  consideration  for  me 
if  you  please,  and  believe  me  there  is  something  in  it  if  it  is  ap- 
proved of.     Awaiting  your  replies, 
"  Yours,  very  truly, 


which  said  letter  was  written  and  sent  as  aforesaid  with  the  intent 

and  purpose,  on  the  part  of  the  said ,  of  bribing  the  said 

to  aid  in  effecting  the  transfer  of  the  said from  his  station 

and  duty  on  board  the  said  ship  to  duty  at  the  aforesaid 

training  station. 

Specification. — In  that  Captain ,  U.  S.  Navy,  com- 
manding the  U.  S.  S.  ,  at , ,  having,  on  March 

22,  1915,  had  referred  to  him  by  the  Bureau  of  Navigation,  Navy 
Department,  a  copy  of  a  letter  which  had  been  received  by  said 

bureau  from  Captain ,  U.  S.  Navy,  commandant  of  the 

naval  station, , ,  in  the  words  and  figures  following,  to 

wit:  *  *  *,  and  having  been  called  upon  by  said  bureau  for  an 
explanation  of  the  facts  mentioned  in  the  letter  above  set  forth,  did, 
on  March  26,  1915,  write,  send,  and  publish,  or  cause  to  be  sent  and 
published  to  the  commandant  of  said  naval  station  and  to  the  Navy 
Department  a  letter,  in  the  words  and  figures  following:  *  *  *, 
which  said  letter  contains  in  the  third  paragraph  thereof  statements 
which  are  wholly  irregular,  unofficerlike,  and  prejudicial  to  good 
order  and  discipline. 

Specification. — In  that ,  seaman,  U.  S.  Navy,  serving 

on  board  the  U.  S.  S.  ,  at , ,  well  knowing  that 

the  said  ship  was  to  sail  for  southern  waters  on  or  about 

August  20,  1914,  did  fail  to  return  to  said  ship  upon  expiration  of 
leave  of  absence  on  said  date,  as  it  was  his  duty  to  do,  and  did  de- 
liberately and  wilfully  remain  absent  from  said  ship  until  after 
she  had  sailed  for  southern  waters  in  order  to  avoid  duty  on  board 
said  ship . 

Specification. — In  that ,  seaman,  U.  S.  Navy,  having, 

on  or  about  August  23,  1913,  while  serving  on  board  the  U.  S.  S. 

,  at  Shanghai,  China,  signed  an  agreement,  on  board  said  ship, 

in  tenor  as  follows,  to  wit : 

"N.  Nav.  59. 

"  To  the  CHIEF  OF  THE  BUREAU  OF  NAVIGATION, 

"Navy  Department,  Washington,  D.  C. 

"  I, ,  serving  as  seaman  in  the  U.  S.  Navy,  request  to 

be  discharged  on  board  of  the  U.  S.  S. ,  as  soon  as  practicable. 

"  If  this  is  granted,  I  further  request  to  be  discharged  in  whatever- 
port  I  may  be  on  the  expiration  of  my  enlistment,  and  hereby  waive 


INSTRUCTIONS  FOR   COURTS  AND  BOARDS.  91 

all  claim  to  transportation  at  Government  expense  to  the  Atlantic 
and  Pacific  coasts  of  the  United  States  and  all  consular  aid,  and  agree 

to  reenlist  on  board  of  the on  the  day  succeeding  my  discharge. 

"  My  current  enlistment  expired  August  3,  1913. 

"(Signed)  , 

"jSeamkn,  U.  S.  Navy. 

«c.  s.  c. . 


"Witness: 

"(Signed)  --  , 

Lieutenant  Commander,  U.  S.  Navy. 

«U.  S.  S.  -  , 

"Shanghai,  China. 

"AUGUST  23,  1913. 

"NB-0297," 

and  having,  on  August  27,  1913,  been  given  a  discharge  from  the 
U.  S.  Navy  which  was  conditional  upon  his  reenlisting  on  the  suc- 
ceeding day,  as  aforesaid,  did,  on  the  day  succeeding  said  discharge, 
namely,  August  28,  1913,  notwithstanding  such  agreement  on  his 
part  and  in  violation  thereof,  knowingly  and  wilfully  neglect  and 
fail  to  reenlist  on  board  the  said  ship  -  . 

Specification.  —  In  that  Ensign  --  ,  U.  S.  Navy,  serving 
on  board  the  U.  S.  S.  -  ,  then  lying  in  the  harbor  of  —  -  —  , 
-  ,  having,  with  permission  from  proper  authority,  left  the  said 
ship  -  on  leave  of  absence  on  January  5,  1915,  did  fail  to  return 
at  or  before  sunset  of  the  same  day,  and  did  remain  absent  from  the 
said  ship  -  until  at  or  about  5.00  a.  m.,  January  6,  1915,  this  in 
violation  of  a  special  order  lawfully  issued  by  Captain  — 

—  ,  commanding  said  ship  -  ,  of  the  following  tenor,  to  wit, 
"  Officers'  leave  shall  expire  at  sunset,"  which  order  was  issued,  as 
the  said  Ensign  -  well  knew,  because  of  the  unsatisfactory  sani- 
tary conditions  existing  in  the  city  of  --  ,  --  ,  in  order  to  pro- 
tect the  officers  and  crew  of  said  ship  from  danger  of  infection  by 
yellow  fever. 

NDUCT  UNBECOMING  AN  OFFICER  AND  A  GENTLEMAN. 


(See  Naval  Digest,  1916,  p.  100,  as  to  "what  constitutes.") 

/Specification.  —  In  that  Gunner  --  ,  U.  S.  Navy,  having 
become  justly  indebted  to  -  ,  of  Washington,  District  of  Co- 
lumbia, in  the  sum  of  five  hundred  sixty-eight  dollars  and  forty- 
five  cents  ($568.45),  for  goods  purchased  from  the  said  -  by 
him,  the  said  -  ,  at  various  times  between  January  26,  1913,  and 
April  19,  1913,  and  said  debt  being  thereafter  due  and  owing  the  said 
-  ,  with  the  exception  of  fifteen  dollars  ($15)  paid  on  or  about 
April  29,  1913,  and  being,  on  or  about  December  20,  1915,  still  in- 

26450°—  17-  --  7 


92  INSTRUCTIONS   FOR   COURTS  AND  BOARDS. 

debted  to  the  aforesaid in  the  sum  of  five  hundred  fifty-three 

dollars  and  forty-five  cents  ($553.45),  the  balance  due  on  his  account 
after  the  aforesaid  payment,  did,  notwithstanding  promises  to  pay 
said  debt,  and  repeated  demands  for  payment  made  on  him,  the  said 

— ,  by  the  said  ,  and  notwithstanding  the  facts  that  he 

had,  on  or  about  March  5, 1914,  been  reported  to  the  Secretary  of  the 

Navy  by  the  said ,  and  again  on  or  about  October  9,  1914,  to 

the  Bureau  of  Navigation,  Navy  Department,  by  the  said for 

the  nonpayment  of  said  indebtedness,  as  he,  the  said  ,  well 

knew,  neglect  and  fail  to  pay  to  the  said the  amount  of  the 

aforesaid  indebtedness  due  and  owing  as  aforesaid,  or  any  part 
thereof,  and  has  ever  since  continued  in  such  neglect  and  failure, 
and  he,  the  said  ,  has  therein  and  thereby  exhibited  a  dis- 
honorable indifference  to  his  just  indebtedness  and  a  disregard  of 
his  obligations  as  an  officer  and  a  gentleman. 

Specification. — In  that  Gunner ,  U.  S.  Navy,  having, 

on  or  about  March  5,  1914,  been  reported  to  the  Secretary  of  the 
Navy  by ,  of  Washington,  District  of  Columbia,  for  the  non- 
payment of  a  just  indebtedness  of  five  hundred  fifty-three  dollars 
and  forty-five  cents  ($553.45),  the  balance  of  an  account  due  and 

owing  the  said  for  goods  purchased  by  the  said  at 

various  times  between  January  26,  1913,  and  April  19, 1913,  and  said 
indebtedness  being  thereafter  due  and  owing,  and  an  itemized  ac- 
count of  said  indebtedness  having  been  referred  to  him,  the  said 
,  by  indorsement,  in  tenor  as  follows : 

"NAVY  DEPARTMENT, 

"  BUREAU  OF  NAVIGATION. 
"  Washington,  D.  C.,  March  6,  1914. 
"  To :  Gunner  -  — ,  U.  S.  N.,  U.  S.  S.  —    -  (commanding 

officer) . 
"  Subject :  Re  alleged  indebtedness  to  -       — . 

"  1.  Referred  for  such  statement  as  you  may  desire  to  make  rela- 
tive to  this  alleged  indebtedness. 

"  2.  You  will  inform  the  department  immediately — 

"  First.  Is  this  a  just  debt  and  owed  by  you  ? 

"  Second.  If  it  be  a  just  debt,  have  you  taken  any  steps  to  make 
payment  ?     If  so,  when  ? 

"  Third.  When  do  you  propose  to  pay  it  in  full  ? 

"3.  If  it  is  a  just  debt,  an  official  report  will  be  made  to  the  de- 
partment when  it  has  been  paid. 

"  4.  Return  all  papers. 


he.  the  said  ,  did  return  said  indorsement  to  the  Bureau  of 

Navigation  aforesaid,  with  a  written  statement,  in  tenor  as  follows : 


INSTRUCTIONS  FOR   COURTS  AND  BOARDS.  93 

"  IT.  S.  S.  —     - 
"  Shanghai,  China,  May  H,  19  H* 

"  From :  Gunner ,  IT.  S.  Navy. 

"  To :  Bureau  of  Navigation,  via  official  channels. 

"  Subject:  Re  alleged  indebtedness  to . 

"  Reference :  Bureau  of  Navigation's  indorsement  of  March  6,  1914. 

"  1.  In  compliance  with  the  foregoing  reference  I  have  to  state 
that  the  bill  of is  a  just  debt. 

"2.  My  reason  for  failing  to  pay  said  debt  is  that  unforeseen 
necessities  have  made  immediate  demands  upon  my  money.  I  am 
making  arrangements  at  present  for  the  payment  of  this  debt  and 
will  make  payment  on  or  about  July  1, 1914. 


and  he,  the  said  -  — ,  did  thereafter  neglect  and  fail  to  make  a 
payment  to  the  said  -  -  on  or  about  July  1,  1914,  as  he  stated  he 
would  do  in  his  written  statement  as  above  set  forth,,  and  has  ever 

since  continued  in  such  neglect  and  failure,  and  he,  the  said , 

has  therein  and  thereby  exhibited  a  dishonorable  indifference  to  his 
written  word  and  just  indebtedness  and  a  disregard  of  his  obliga- 
tions as  an  officer  and  a  gentleman. 

Specification. — In  that  Ensign ,  IT.  S.  Navy,  having, 

on  or  about  April  16,  1914,  voluntarily  signed  a  paper  pledging  him- 
self to  abstain  from  all  use  of  intoxicating  liquors,  except  when  pre- 
scribed as  medicine,  for  a  period  of  five  jears,  which  paper  was 
formally  witnessed  by  Captain  -  — ,  U.  S.  Navy,  the  com- 

manding officer  of  the  said  -       — ,  did,  on  or  about  October  25,  1915, 

in  the  city  of  -        — , ,  notwithstanding  his  pledge  so  given 

and  in  violation  thereof,  drink  intoxicating  liquor  not  prescribed  as 
medicine;  and  he,  the  said  -  — ,  did  thereby  exhibit  a  disregard 
of  his  obligations  as  an  officer  and  a  gentleman. 

Charge. — CULPABLE  INEFFICIENCY  IN  THE  PERFORMANCE  OF  DUTY. 

Specification. — In  that  Lieutenant ,  U.   S.   Navy, 

serving  as  navigator  on  board  the  U.  S.  S. ,  making  passage 

from to  -       — ,  on  February  2,  1915,  well  knowing  that  at 

about  sunset  of  said  day  the  said  ship  had  nearly  run  her  estimated 
distance  from  the  four  o'clock  postmeridian  position,  obtained  and 

plotted  by  him,  to  the  position  of  ,  and  wTell  knowing  the 

difficulty  of  sighting  from  a  safe  distance  after  sunset,  did 

then  and  there  fail  to  advise  his  commanding  officer  to  lay  a  safe 
course  for  said  ship  to  the  northward  before  continuing  on  a  westerly 
course;  and  the  said  Lieutenant  —  -  was  therein  and 

thereby  culpably  inefficient  in  the  performance  of  his  duty  as  navi- 
gator, in  consequence  of  which  the  said  ship  was,  at  about  6.50  p.  m. 


94  INSTRUCTIONS   FOB  COURTS  AND  BOARDS. 

on  the  day  above  mentioned,  run  upon  Bank,  in  the  - 

Sea,  in  about  latitude  degrees,  minutes  north,  and 

longitude degrees, minutes  west,  and  was  stranded. 

Specification. — In  that  Lieutenant  (junior  grade) , 

U.  S.  Navy,  while  serving  as  officer  of  the  deck  on  board  the  U.  S.  S. 
,  a  steam  vessel,  making  passage  from to ,  hav- 
ing been  informed  between  8.00  and  9.00  p.  m.  on  March  13,  1915, 

that  the  said  ship was  approaching  a  sailing  vessel,  both  said 

vessels  being  then  off , ,  did  then  and  there  fail  to  issue 

and  see  effected  such  timely  orders  as  were  necessary  to  cause  the 

said  ship  to  keep  out  of  the  way  of  said  sailing  vessel  by 

passing  astern  of  the  said  sailing  vessel,  and  he,  the  said ,  was 

therein  and  thereby  culpably  inefficient  in  the  performance  of  his 

duty  as  officer  of  the  deck,  by  reason  of  which  inefficiency  the  U.  S.  S. 

-  collided,  at  the  time  and  place  aforesaid,  with  the  said  sailing 

vessel,  being  the  schooner ,  of  -        — ,  -       — ,  as -a  result  of 

which  collision  the  said  schooner  was  sunk. 

Specification. — In  that  Captain  -  ,  U.  S.  Navy,  being 

in  command  of  the  U.  S.  S.  -  ,  making  passage  from  -      —  to 

— ,  on  the  afternoon  of  May  20,  1915,  well  knowing  that  the  said 

ship  was  approaching Shoal  off  -   ,  and  that  the  weather 

was  then  and  there  foggy  and  misty,  did,  nevertheless,  then  and  there 

fail  to  set  a  safe  course  for  passing  said Shoal,  in  consequence 

of  which  the  said  ship  was,  at  or  about  4.00  p.  m.  on  the  day  afore- 
said, run  upon Shoal  and  stranded ;  and  he,  the  said  -  — , 

was  therein  and  thereby  culpably  inefficient  in  the  performance  of 
his  duty  as  commanding  officer  of  said  ship. 

Specification. — In  that  Passed  Assistant  Paymaster , 

U.  S.  Navy,  serving  on  board  the  U.  S.  S. ,  having,  as  supply 

officer  of  said  ship,  between  June  1,  1915,  and  March  31,  1916,  issued 
to  the  officers'  messes  of  said  ship  various  quantities,  amounts  un- 
known, of  beef,  veal,  and  other  meats  charged  to  the  general  mess  of 
said  ship,  did  fail  to  keep  or  cause  to  be  kept  a  proper  account  of 
the  issue  of  said  provisions,  and  was  therein  culpably  inefficient  in 
the  performance  of  duty. 

Charge.— DESERTION.    (See  C.  M.  O.  41, 1914,  3.) 

Specification. — In  that ,  landsman,  U.  S.  Navy,  did, 

on  or  about  May  26,  1915,  while  a  general  court-martial  prisoner 

at  the  United  States  naval  prison,  navy  yard,  ,  desert  from 

said  prison  and  from  the  U.  S.  Navy,  and  did  remain  a  deserter 

until  he  was  delivered  on  board  the  U.  S.  S. ,  at ,  on  or 

about  July  3,  1915. 

Specification. — In  that ,  seaman,  alias . 

coal  passer,  U.  S.  Navy,  did,  on  or  about  July  6,  1915,  while  serving 


INSTRUCTIONS  FOR   COURTS  AND  BOARDS.  95 

under  the  name  and  rate  of — ,  seaman,  desert  from  the 

U.  S.  S.  -  — ,  at ,  and  from  the  U.  S.  Navy,  and  did  re- 
main a  deserter  until  he  was  identified,  on  or  about  April  4,  1916, 
while  serving  under  the  name  and  rate  of  -  — ,  coal  passer, 

IT.  S.  Navy. 

Specif  cation. — In  that ,  seaman,  U.  S.  Navy,  did, 

on  or  about  October  15,  1915,  desert  from  the  U.  S.  S. ,  at 

— ,  and  from  the  U.  S.  Navy,  and  did  remain  a  deserter  until 
he  was  delivered  on  board  the  aforesaid  ship,  at  the  aforesaid  place, 
on  or  about  October  18,  1915. 

Specification.— In.  that ,  fireman  first  class,  U.  S. 

Navy,  did,  on  or  about  August  8, 1915,  while  oiler,  U.  S.  Navy,  desert 

from  the  U.  S.  S.  ,  at ,  and  from  the  U.  S.  Navy,  and 

did  remain  a  deserter  until  he  was  delivered  on  board  the  receiving 
ship  at , ,  on  or  about  August  30, 1915. 

/Specification. — In  that — ,  private,  U.  S.  Marine  Corps, 

did,  on  or  about  March  20,  1913,  desert  from  the  United  States  ma- 
rine barracks,  navy  yard,  — -,  and  from  the  U.  S.  Marine  Corps, 

and  did  remain  a  deserter  until  he  surrendered  himself  at  the  United 

States  marine  barracks,  navy  yard, ,  on  or  about  August  20, 

1913. 

Specification. — In  that ,  private,  U.  S.  Marine  Corps, 

did,  on  or  about  October  2,  1915,  desert  from  the  U.  S.  S. ,  at 

— ,  and  from  the  U.  S.  Marine  Corps,  and  did  remain  a  deserter 

until  he  was  identified,  on  or  about  February  2, 1916,  at ,  while 

an  applicant  for  enlistment  in  the  U.  S.  Navy  under  the  name  of 


Specification. — In  that ,  mess  attendant  third  class, 

U.  S.  Navy.  did.  on  or  about  June  27,  1915,  while  a  general  court- 
martial  probationer,  desert  from  the  U.  S.  S. ,  at  -  — ,  and 

from  the  U.  S.  Navy,  and  did  Temain  a  deserter  until  he  was  deliv- 
ered on  board  the  U.  S.  S. ,  at ,  on  or  about  May  11, 

1916. 

Specification. — In  that ,  seaman,  U.  S.  Navy,  did,  on 

or  about  April  20,  1917,  desert  from  the  U.  S.  S.  -  — ,  at  -  — , 
and  from  the  U.  S.  Navy,  and  dici  remain  a  deserter  until  he  was 

delivered  on  board  the  U.  S.  S. ,  at ,  on  or  about  May 

3,  1917. 

Specification. — In  that ,  seaman,  U.  S.  Navy,  did, 

on  or  about  August  18, 1914,  desert  from  the  receiving  ship  at  -  — , 
— ,  and  from  the  U.  S.  Navy,  and  did  remain  a  deserter  until 
he  was  delivered  to  naval  authority  on  or  about  June  30,  1915,  at 
Fort . 


96  INSTRUCTIONS  FOR  COURTS  AND  BOARDS. 

Charge. — DISOBEDIENCE  or  A  LAWFUL  ORDER  OF  THE  SECRETARY  OF 

THE  NAVY. 

Specification. — In  that  Carpenter  -  — ,  U.  S.  Navy,  serv- 
ing on  board  the  U.  S.  S. ,  having,  on  or  about  August  1,  1915, 

had  addressed  to  him  by  the  Secretary  of  the  Navy  a  letter  in  words 
and  figures  substantially  as  follows:  *  *  *,  did,  notwithstanding 
the  direction  of  the  Secretary  of  the  Navy  immediately  to  acknowl- 
edge the  receipt  of  said  letter,  neglect  and  fail,  and  has  ever  since 
neglected  and  failed,  to  make  such  acknowledgment;  and  the  said 

did  therein  and  thereby  wilfully  disobey  a  lawful  order  of 

the  Secretary  of  the  Navy. 

Charge. — DISOBEYING  THE  LAWFUL  ORDER  OF  His , SUPERIOR  OFFICER. 

Specification. — In  that  Ensign  —  — ,  U.  S.  Navy,  serving 

on  board  the  U.  S.  S.  ,  having,  on  or  about  May  19,  1915, 

on  board  said  ship,  been  ordered  by  Lieutenant ,  U.  S. 

Navy,  the  executive  officer  of  said  ship,  to  'superintend  the  work  of 
breaking  out  the  fore  hold,  did  then  and  there  refuse  to  obey  and 
did  wilfully  disobey  said  lawful  order. 

Specification. — In  that ,  a  private  in  the  U.  S.  Marine 

Corps,  serving  at  the  United  States  marine  barracks,  navy  yard, 

,  —  — ,  having,  on  or  about  March  10,  1916,  at  said  marine 

barracks,  been  lawfully  ordered  by  the  commanding  officer  of  said 

barracks,  Major ,  U.  S.  Marine  Corps,  to  submit  to  the 

administration  of  typhoid  prophylaxis,  did  then  and  there,  on  the 
date  and  at  the  place  aforesaid,  refuse  to  obey  and  did  wilfully 
disobey  said  lawful  order. 

Specification. — In  that — ,  seaman,  U.  S.  Navy,  serv- 
ing on  board  U.  S.  S.  -  — ,  at  -  — ,  -  — ,  having,  on  June  6, 
1913,  while  on  shore  at  said  place  as  a  member  of  a  landing  party 
for  the  protection  of  the  United  States  consulate,  been  ordered 

by  Lieutenant ,  U.  S.  Navy,  to  cease  being  noisy  and 

disorderly,  did  then  and  there  refuse  to  obey  and  did  wilfully  dis- 
obey the  said  lawful  order  of  the  said  Lieutenant ,  who  was 

then  and  there  in  the  execution  of  the  duties  of  his  office. 

Specification. — In  that ,  seaman,  U.  S.  Navy,  serv- 
ing on  board  the  U.  S.  S.  ,  having,  on  June  16,  1915,  been 

ordered  by ,  chief  boatswain's  mate,  U.  S.  Navy,  to  go 

to  the  berth  deck  of  said  ship  and  perform  extra  'duty  in  accordance 
with  the  sentence  of  a  summary  court-martial,  did  then  and  there 
refuse  to  obey  and  did  wilfully  disobey  the  said  lawful  order  of  the 
said  chief  boatswain's  mate,  who  was  then  and  there  in  the  execution 
of  the  duties  of  his  office. 


INSTRUCTIONS  FOE  COURTS  AND  BOARDS.  97 

Specification. — In  that ,  seaman,  U.  S.  Navy,  serving 

on  board  the  U.  S.  S. ,  having,  on  May  17,  1915,  while  a  mem- 
ber of  the  crew  of  the  first  steamer  of  said  ship,  been  ordered  by 

Lieutenant ,  U.  S.  Navy,  then  officer  of  the  deck  of 

said  ship,  not  to  leave  said  first  steamer  between  the  hours  of  3.00 
and  4.00  p.  m.  on  the  day  aforesaid,  did,  at  about  3.30  p.  m.  on  said 
day,  leave  said  steamer  and  go  to  the  canteen  of  said  ship,  and  did 
thereby  wilfully  disobey  the  said  lawful  order  of  the  said  Lieu- 
tenant   ,  who  was  then  and  there  in  the  execution  of  the  duties 

of  his  office. 

Charge. — DISRESPECT  TO  THE  SECRETARY  or  THE  NAVY. 

Specification. — In  that  Assistant  Civil  Engineer  — , 

U.  S.  Navy,  having,  in  a  letter  dated  December  17,  1915,  from  the 
Secretary  of  the  Navy,  been  directed  to  explain  his  failure  to  pro- 
ceed to  -  — , ,  in  accordance  with  an  order  of  the  Secretary 

of  the  Navy,  dated  November  15,  1915,  did,  at ,  on  or  about 

December  29,  1915,  write,  send,  and  publish  or  cause  to  be  sent  and 
published  to  the  Secretary  of  the  Navy  a  letter,  in  the  words  and 
figures  following,  to  wit:  *  *  *,  which  said  letter  contains  con- 
temptuous and  disrespectful  words  of  and  against  the  Secretary  of 
the  Navy,  and  violates  the  respect  due  from  him,  the  said  -  — , 
to  the  Secretarv  of  the  Navy. 

Charge. — DISRESPECTFUL  IN  LANGUAGE  AND  DEPORTMENT  TO  HIS  SU- 
PERIOR OFFICER  WHILE  IN  THE  EXECUTION  OF  His  OFFICE. 

Specification. — In  that  Machinist ,  U.  S.  Navy,  serv- 
ing on  board  the  U.  S.  S.  ,  having,  on  or  about  October  4, 

1915,  on  board  said  ship,  been  ordered  by  the  senior  engineer  officer 

of  said  ship,  Lieutenant ,  U.  S.  Navy,  to  inspect  the 

clothing  of  his  section  of  the  engineer  division,  did,  at  the  time  and 

place  aforesaid,  say  to  said  Lieutenant  ,  in  a  disrespectful 

manner,  "  I  haven't  got  time  to  do  that  now,"  or  words  to  that  effect, 

and  therein  and  thereby  the  said  Machinist was  disrespectful 

in  language  and  deportment  to  his  superior  officer,  the  said  Lieu- 
tenant   ,  who  was  then  and  there  in  the  execution  of  his  office. 

Specification. — In  that  Assistant  Surgeon  ,  U.  S.  Navy, 

serving  on  board  the  U.  S.  S. ,  at  -  — ,  -  — ,  having,  on 

or  about  November  16,  1915,  on  board  said  ship,  been  informed  by 

his  superior  officer,  Surgeon  — ,  U.  S.  Navy,  the  senior 

medical  officer  of  said  vessel,  that  he  had  reported  the  said 's 

failure  to  inspect  the  brig  of  said  ship  in  accordance  with  his,  the 
said 's,  orders,  did  then  and  there  assume  a  disrespectful  and 


98  INSTRUCTIONS  FOB  COURTS  AND  BOARDS. 

defiant  manner  toward  his  said  superior  officer,  and  did  reply :  "  Re- 
ported me!  Go  ahead  and  report;  you  have  put  your  foot  in  it,  I 

give  you  that  for  a  tip,"  or  words  to  that  effect;  and  the  said 

was  therein  and  thereby  disrespectful  in  language  and  deportment 

to  his  superior  officer,  the  said  Surgeon  ,  who  was  then  and 

there  in  the  execution  of  his  office. 

/Specification. — In  that  Lieutenant  (junior  grade) , 

U.  S.  Navy,  serving  on  board  the  U.  S.  S. ,  did,  on  board  said 

ship,  on  or  about  April  6,  1915,  when  refused  permission  by  his 

superior  officer,  Lieutenant  Commander ,  U.  S.  Navy, 

the  executive  officer  of  the  said  ship,  to  leave  said  ship,  in  an  insolent 

manner  say  to  said  Lieutenant  Commander :  "  *     *     *," 

or  words  to  that  effect ;  and  the  said  — : was  therein  and  thereby 

disrespectful  in  language  and  deportment  to  his  superior  officer,  the 
said  -  — ,  who  was  then  and  there  in  the  execution  of  his  office. 

Specification. — In  that  —  — ,  seaman,  U.  S.  Navy,  serv- 

ing on  board  the  U.  S.  S.  —  — ,  at  -  — ,  -  — ,  did,  on  June  6, 
1915,  while  on  shore  at  said  place  as  a  member  of  a  landing  party 
for  the  protection  of  the  United  States  consulate,  when  ordered  oh 

sentry  duty  by  Lieutenant ,  U.  S.  Navy,  commanding 

the  said  landing  party,  say  in  a  defiant  manner  to  said  Lieutenant 

:  "  It's  not  my  turn ;  you  can't  make  me  do  it,"  or  words  to 

that  effect,  and  was  therein  and  thereby  disrespectful  in  language  and 
deportment  to  his  superior  officer,  Lieutenant  -  — ,  who  was  then 
and  there  in  the  execution  of  the  duties  of  his  office. 

Specification. — In  that ,  private,  U.  S.  Marine  Corps, 

serving  at  the  marine  barracks,  ,  ,  did,  on  August  15, 

1915,  while  confined  in  the  guardroom  at  said  barracks,  in  reply  to 

a  question  addressed  to  him  by  Second  Lieutenant ,  U. 

S.  Marine  Corps,  the  o^icer  of  the  day  at  said  place  and  time,  reply 
in  a  surly  and  contemptuous  manner,  "  Oh,  get  out  of  here ;  don't 
talk  to  me,"  or  words  to  that  effect,  and  was  therein  and  thereby  dis- 
respectful in  language  and  deportment  to  his  superior  officer,  Second 

Lieutenant ,  who  was  then  and  there  in  the  execution  of 

his  office. 

Charge.— DRUNKENNESS.    (See  C.  M.  O.  17,  1917,  4.) 

Specification. — In  that  Lieutenant ,  U.  S.  Navy, 

serving  on  board  the  U.  S.  S. ,  at , ,  was,  on  March 

6, 1915,  on  board  said  ship,  under  the  influence  of  intoxicating  liquor, 
and  thereby  incapacitated  for  the  proper  performance  of  duty. 

Specification. — In  that  Commander  -  — ,  U.  S.  Navy, 

serving  as  captain  of  the  yard,  at  the  navy  yard,  -  — ,  -  — ,  was. 
on  or  about  May  25,  1915,  at  the  -  -  Hotel  in  the  city  of  -  — , 
— ,  under  the  influence  of  intoxicating  liquor. 


INSTRUCTIONS  FOR  COURTS  AND  BOARDS.  99 

Specification. — In  that ,  private,  U.  S.  Marine  Corps, 

serving  on  board  the  U.  S.  S. ,  at  the  navy  yard, , , 

was,  at  said  navy  yard,  on  August  13,  1912,  under  the  influence  of 
intoxicating  liquor  and  thereby  unfit  for  duty. 

Specification. — In  that  — : ,  seaman,  U.  S.  Navy,  a 

patient  at  the  naval  hospital, , ,  was,  on  or  about  May 

8,  1015,  under  the  influence  of  intoxicating  liquor  at  said  hospital. 

/Specification. — In  that ,  private,  U.  S.  Marine  Corps, 

serving  at  the  marine  barracks,  navy  yard, ,  -  — ,  was,  on 

April  15,  1913,  upon  his  return  to  said  barracks  from  liberty,  under 
the  influence  of  intoxicating  liquor  and  thereby  unfit  for  duty. 

Charge. — DRUNKENNESS  ON  DUTY. 

Specification. — In  that  Commander ,  U.  S.  Navy, 

serving  as  commandant  of  the  navy  yard, , ,  was,  on  or 

about  November  10,  1915,  at  his  quarters  in  said  yard,  being  then 
and  there  on  duty,  under  the  influence  of  intoxicating  liquor. 

Specification. — In  that  Lieutenant  ,  U.   S.   Navy, 

serving  on  board  the  U.  S.  S. ,  was,  on  or  about  May  24,  1915, 

while  on  duty  as  officer  of  the  deck  of  said  ship,  under  the  influence 
of  intoxicating  liquor,  and  thereby  incapacitated  for  the  proper  per- 
formance of  duty. 

Specification. — In  that  Lieutenant  : — ,   U.   S.   Navy, 

serving  on  board  the  U.  S.  S. ,  was,  while  on  duty  and  muster- 
ing his  division  at  quarters  on  said  ship,  on  or  about  September  13, 
1915,  under  the  influence  of  intoxicating  liquor,  and  thereby  in- 
capacitated for  the  proper  performance  of  duty. 
.  Specification. — In  that ,  seaman,  U.  S.  Navy,  serv- 
ing on  board  the  U.  S.  S. ,  at  — , ,  was,  on  June  6, 

1915,  while  on  shore  at  said  place  on  duty  as  a  member  of  a  landing 
party  for  the  protection  of  the  United  States  consulate,  under  the 
influence  of  intoxicating  liquor,  and  thereby  incapacitated  for  the 
proper  performance  of  duty. 

Specification. — In  that ,  private,  U.  S.  Marine  Corps, 

serving  at  the  marine  barracks,  navy  yard,  , ,  was,  on 

November  22,  1915,  while  acting  as  corporal  of  the  guard  at  said 
yard,  under  the  influence  of  intoxicating  liquor  on  guard. 

Specification. — In  that ,  private,  U.  S.  Marine  Corps, 

serving  on  board  the  U.  S.   S.  ,  at  the  navy  yard,  , 

,  was,  on  or  about  April  19,  1915,  while  a  member  of  the 

guard  of  the  day  of  the  said  ship,  under  the  influence  of  intoxicating 
liquor  on  guard. 

Specification. — In  that ,  private,  U.  S.  Marine  Corps, 

serving  at  the  marine  barracks,  navy  yard, , ,  having, 


100  INSTRUCTIONS  FOR  COURTS  AND  BOARDS. 

on  July  18,  1913,  been  regularly  posted  as  a  sentinel  at  the  main  gate 
at  said  navy  yard,  was,  on  said  date,  under  the  influence  of  intoxicat- 
ing liquor  while  on  said  post. 

Charge.— EMBEZZLEMENT.     (See  C.  M.  O.  4,  1913;  39,  1913.) 

Specification. — In  that  Assistant  Paymaster ,  T.T.  S. 

Navy,  having,  while  serving  on  board  the  U.  S.  S. ,  on  board 

said  ship,  received  into  his  possession  and  under  his  control,  in  the 
execution  and  under  the  color  of  his  office  as  aforesaid,  money  of  the 
United  States,  furnished  and  intended  for  the  naval  service  thereof, 
for  the  disbursement  of  which  according  to  law  he,  the  said  -  — , 
was  responsible,  did,  during  the  period  from  March  31,  1915,  to  May 
11, 1915,  fail  safely  to  keep  and  account  for  the  sum  of  eight  hundred 
dollars  ($800),  or  thereabouts,  of  the  aforesaid  money  of  the  United 
States,  and  did,  therein  and  thereby,  then  and  there  embezzle  the 
sum  of  eight  hundred  dollars  ($800),  or  thereabouts,  of  money  of  the 
United  States,  furnished  and  intended  for  the  naval  service  thereof. 

/Specification. — In  that  Paymaster ,  U.  S.  Navy,  while 

serving  on  board  the  U.  S.  S.  ,  during  the  third  and  fourth 

quarters  of  the  fiscal  year  ended  June  30,  1913,  to  wit,  from  Janu- 
ary 1,  1913,  to  June  30,  1913,  having  received  into  his  possession 
and  under  his  control,  in  the  execution  and  under  color  of  his  office 
as  aforesaid,  twenty-nine  cases,  or  thereabouts,  of  canned  pine- 
apples, of  the  total  value  of  one  hundred  thirty-nine  dollars  and 
twenty  cents  ($139.20),  or  thereabouts,  which  canned  pineapples 
of  the  quantity  and  value  aforesaid  were  subsistence  stores  of  the 
United  States,  furnished  and  intended  for  the  naval  service  thereof, 
to  wit,  for  issue  to  and  consumption  by  the  general  mess  on  board 

said  ship  ,  and  he,  the  said  Paymaster  ,  having  then 

and  there,  during  the  period  aforesaid,  wrongfully  and  knowingly 
sold  and  disposed  of,  or  caused  to  be  sold  and  disposed  of,  in  the 

ship's  store  on  board  said  ship  ,  the   aforesaid  subsistence 

stores  of  the  United  States  of  the  value  and  amount  of  one  hundred 
thirty-nine  dollars  and  twenty  cents  ($139.20),  or  thereabouts,  as 
aforesaid,  he,  .the  said  Paymaster  ,  did  then  and  there  em- 
bezzle and  unlawfully  convert  to  his  own  use  said  sum  of  one  hun- 
dred thirty-nine  dollars  and  twenty  cents  ($139.20),  or  thereabouts, 

money  of  the  United  States  received  by  the  said  Pa}^master 

in  the  execution  and  under  color  of  his  office  as  aforesaid,  being  pro- 
ceeds derived  from  the  sale  of  the  subsistence  stores  of  the  United 
States  as  aforesaid. 

/Specification. — In   that  Paymaster  ,  U.    S.   Navy. 

serving  on  board  the  U.  S.  S. ,  having,  on  or  about  February 

25,  1915,  received  a  lawful  order  from  the  Secretary  of  the  Navy, 


INSTRUCTIONS  FOB  COURTS  A,NI»  BO*KD£.  .101 

dated  February  5,  1915,  directing  him  to  transfer  to  Paymaster 

,  U.  S.  Navy,  the  public  funds  in  his  possession,  and 

the  said ,  having  as  pay  officer  of  the  said  ship ,  between 

January  1,  1915,  and  February  25,  1915,  received  the  sum  of  one 
thousand  twenty-five  dollars  ($1,025),  or  thereabouts,  lawful  money 
of  the  United  States,  for  subsistence  stores  of  the  United  States, 
furnished  and  intended  for  the  naval  service  thereof,  and  sold  to 

officers'  and  other  messes  of  said  ship ,  which  sum  should  have 

been  transferred  to  his  relief,  Paymaster ,  U.  S.  Navy, 

in  obedience  to  the  aforesaid  order,  did,  on  or  about  February  25, 

1915,  on  board  said  ship  ,  fail  to  transfer  to  his  relief,  the 

said  Paymaster  ,  the  said  sum  of  one  thousand  twenty-five 

dollars  ($1,025),  received  for  subsistence  stores  as  aforesaid;  and  the 

said did  thereby  embezzle  the  said  sum  from  moneys  of  the 

United  States  in  his  custody. 

Specification. — In  that  Paymaster  -  — ,  U.  S.  Navy,  serving  on 

board  the  U.  S.  S. ,  was  on  July  31,  1915,  justly  indebted  to 

the  United  States  in  the  sum  of  thirty-nine  thousand  five  hundred 
seventy-three  dollars  and  five  cents  ($39,573.05),  money  of  the  United 
States,  under  "  General  account  of  advances,"  for  the  safe-keeping 
and  disbursement  of  which  sum,  in  accordance  with  law,  he,  the 

said ,  was  responsible;  whereas  he,  the  said ,  did  have 

on  hand  in  cash,  on  board  said  ship,  on  the  said  date,  the  sum  of 
thirteen  thousand  nine  hundred  seventy  dollars  and  five  cents  ($13,- 
970.05),  and  subject  to  his  check  in  the  subtreasuries  at  New  York 
and  San  Francisco  the  total  sum  of  nineteen  thousand  three  hundred 
twenty-three  dollars  and  ninety-one  cents  ($19,323.91),  making  an 
aggregate  sum  of  only  thirty-three  thousand  two  hundred  ninety- 
three  dollars  and  ninety-six  cents  ($33,293.96),  accounted  for;  and 
the  said  -  -  did,  on  the  date  aforesaid,  in  and  by  rendering  a 
false  and  fraudulent  return  of  balances  to  his  credit,  in  words  and 
figures  as  follows :  "  *  *  *,"  then  and  there  embezzle  and  convert 
to  his  own  use  the  sum  of  six  thousand  two  hundred  seventy-nine 
dollars  and  nine  cents  ($6,279.09),  or  thereabouts,  from  moneys  of 
the  United  States  in  his  custody,  furnished  and  intended  for  the 
naval  service  thereof,  said  sum  being  the  difference  between  the 
amount  for  which  he  was  accountable  to  the  United  States  and  the 
amount  accounted  for  as  aforesaid. 

/Specification. — In  that  Paymaster ,  U.  S.  Navy,  serv- 
ing at  the  naval  station,  -  — , ,  having,  between  November 

26,  1915,  and  March  1,  1916,  had  placed  to  his  official  credit  in  the 
United  States  subtreasury,  -  — ,  -  — ,  the  sum  of  one  hundred 
and  fifty  thousand  two  hundred  forty-five  dollars  and  eighty-seven 
cents  ($150,245.87),  or  thereabouts,  lawful  money  of  the  United 


102  INSTRUCTIONS  FOR   COURTS  AND  BOARDS. 

States,  for  disbursement  at  the  naval  station  to  which  he  was  at- 
tached, and  being  authorized  to  draw  from  the  same  only  as  might 
be  required  for  payments  to  be  made  by  him  in  pursuance  of  law, 
did,  on  or  about  March  1,  1915,  withdraw  from  the  said  moneys  witli 
which  he  was  so  entrusted,  and  did  convert  to  his  own  use,  the  sum 
of  five  thousand  dollars  ($5,000),  which  sum  was  not  so  withdrawn 
and  converted  in  payment  made  pursuant  to  law,  by  drawing  a 
check,  numbered  thirty-eight  thousand  eight  hundred  and  seventy- 
seven,  in  favor  of  himself  for  the  last-mentioned  amount  on  the 
aforesaid  subtreasury,  and  receiving  the  money  for  the  same  from 
the  First  National  Bank  of ,  -  ,  thereby  effecting  an  em- 
bezzlement of  five  thousand  dollars  ($5,000),  lawful  money  of  the 
United  States,  furnished  and  intended  for  the  naval  service  thereof. 

Charge. — EXECUTING  A  FRAUD  AGAINST  THE  UNITED  STATES. 

Specification. — In  that  Paymaster ,  U.  S.  Navy,  serv- 
ing on  board  the  U.  S.  S. ,  did,  between  July  1,  1915,  and  Sep- 
tember 30,  1915,  on  board  said  ship,  issue  or  cause  to  be  issued,  from 
the  stores  of  the  United  States  on  board  said  ship  entrusted  to  his 
charge,  one  overcoat,  one  blue  overshirt,  two  pairs  of  shoes,  and 
various  other  articles  of  clothing  of  aggregate  value  of  about  thirty- 
five  dollars  ($35),  to ,  seaman,  U.  S.  Navy,  attached  to 

said  ship ;  and  did  wilfully  and  with  corrupt  intent  neglect  and  fail 
to  charge  or  cause  to  be  charged  for  the  same  as  such  on  the  clothing 
roll  of  said  ship  for  the  then  current  quarter,  but  in  lieu  thereof  did 
knowingly  and  fraudulently  overcharge  the  account  of  money  paid 

the  said during  the  current  quarter  on  the  pay  roll  of  said 

ship  the  amount  of  thirty-five  dollars  ($35). 

Specification. — In  that  Pay  Clerk ,  U.  S.  Navy,  while 

serving  at  the  navy  yard,  ,  ,  as  assistant  to  the  pay 

officer  of  the  naval  prison  at  said  navy  yard,  did,  on  or  about  March 
29,  1915,  having  received  into  his  charge,  possession,  custody,  and 
control  the  sum  of  eighty-four  dollars  and  forty-two  cents  ($84.42), 
or  thereabouts,  lawful  money  of  the  United  States  furnished  and  in- 
tended to  be  paid  to ,  landsman,  U.  S.  Navy,  who  was 

then  being  discharged  from  the  United  States  naval  prison  at  the 
aforesaid  navy  yard,  and  from  the  United  States  naval  service,  wil- 
fully, corruptly,  and  with  intent  to  defraud,  deliver  to  the  said 

the  sum  of  sixty-four  dollars  and  forty-two  cents  ($64.42),  or 

thereabouts,  lawful  money  of  the  United  States,  well  knowing  that 
the  said was  lawfully  entitled  to  the  sum  of  eighty-four  dol- 
lars and  forty-two  cents  ($84.42),  and  had  authority  to  receive  same, 
for  which  sum  of  sixty- four  dollars  and  forty-two  cents  ($64.42),  the 
said did  then  and  there  give  a  receipt,  and  the  said 


INSTRUCTIONS   FOR   COURTS   AND   BOARDS.  103 

did  therein  and  thereby  defraud  the  United  States  of  the  sum  of 
twenty  dollars  ($20),  or  thereabouts,  lawful  money  of  the  United 
States,  by  then  and  there  converting  and  appropriating  the  said 
twenty  dollars  ($20)  to  his,  the  said 's,  own  use. 

Charge. — FAILING  TO  USE  His  UTMOST  EXERTIONS  TO  DETECT,  APPRE- 
HEND, AND  BRING  TO  PUNISHMENT  ALL,  OFFENDERS. 

Specification. — In  that  —  — ,  private,  U.  S.  Marine  Corps, 

serving  at  the  marine  barracks,  navy  yard,  , ,  having, 

on  or  about  February  20,  1911,  at  said  navy  yard,  been  informed  by 

— ,  private,  U.  S.  Marine  Corps,  that  he,  the  said  - 
— ,  was  about  to  commit  a  theft  in  the  storeroom  of  the  post 
quartermaster  at  said  barracks,  and  having  witnessed  the  aforesaid 

,  in  company  with  others,  names  unknown,  commit  a 

theft  in  the  aforesaid  storeroom,  did  then  and  there  fail  to  prevent, 
or  to  make  any  effort  to  prevent,  the  commission  of  said  theft,  and 
did  fail  to  use  his  utmost  exertions  to  detect,  apprehend,  and  bring 
to  punishment  the  perpetrators  of  said  theft. 

~.  „ 

Charge. — FALSEHOOD.   . 


Specification. — In  that  Passed  Assistant  Surgeon , 

U.  S.  Navy,  member  and  recorder  of  a  board  of  medical  examiners 

in  session  at  the  naval  hospital,  navy  yard,  -  — , ,  having, 

on  or  about  October  13,  1913,  refused,  on  account  of  alleged  infor- 
malities, to  record  the  proceedings  had  by  the  said  board  in  the  case 

of  Ensign ,  U.  S.  Navy,  did,  on  said  date,  state  to 

Medical  Inspector  ,  U.  S.  Navy,  president  of  said 

board,  that  he,  the  said ,  had  referred  the  matter  of  his 

action  in  refusing  to  record  the  proceedings  of  the  board  as  aforesaid 
to  the  Secretary  of  the  Navy,  who  had  sustained  his  action  in  so 
refusing,  which  said  statement  was  wholly  false  and  intended  to  de- 
ceive, as  he,  the  said ,  well  knew. 

Specification. — In  that  Colonel  —  — ,  U.  S.  Marine  Corps, 

being  in  command  of  the  marine  barracks,  navy  yard,  —  — ,  — , 

well  knowing  that  the  northwest  chimney  of  the  building  at  said 

barracks  occupied  as  officers'  quarters  was  in  a  dangerous  condition, 

such  fact  having  been  officially  reported  to  him  by  First  Lieutenant 

— ,  U.  S.  Marine  Corps,  on  April  2,  1915,  and  having,  on 

or  about  April  10,  1915,  received  from  the  Commandant  of  the  U.  S. 

Marine   Corps   a  telegram   of  that  date  substantially   as   follows: 

*,"  did,  on  the  same  day,  send  to  said  commandant  a  telegram 

in  reply  substantially  as  follows:  "*  *  *,"  the  said  well 

knowing  that  the  first  order  given  by  him  to  discontinue  the  use  of 


104  INSTRUCTIONS  FOR  COURTS  AND  BOARDS. 

said  defective  chimney  was  not  issued  until  April  10,  1915,  and  that 
so  much  of  his  aforesaid  telegram  as  stated  that  he  had  ordered 
discontinuance  of  the  use  of  the  said  chimney  as  soon  as  the  defect 
was  discovered  therein  was  wholly  false  and  intended  to  deceive. 

/Specification. — In  that  Passed  Assistant  Paymaster , 

U.  S.  Navy,  then  serving  on  board  the  U.  S.  S. ,  at  Shanghai, 

China,  having  received  from  the  Navy  Department  a  letter  in  words 
and  figures  substantially  as  follows,  to  wit :  "  *  *  *,"  did,  on  or 
about  December  28,  1915,  address  to  the  Secretary  of  the  Navy  a 
letter  in  words  and  figures  substantially  as  follows,  to  wit :  "  *  *  *," 
the  said  -  —  well  knowing  that  the  statements  contained  in  his 
letter  of  December  28,  1915,  to  the  effect  that  he  had  received  the 
sum  of  two  thousand  five  hundred  dollars  ($2,500)  from  his  former 
clerk,  -  — ,  as  a  loan  and  not  in  any  sense  as  a  bond,  was 

wholly  false  and  intended  to  deceive. 

Specification. — In  that  Captain  -  — ,  U.  S.  Marine  Corps, 

in  command  of  the  marine  barracks,  navy  yard, — ,  acting 

as  post  treasurer  at  said  barracks,  and  being  in  such  capacity  charged 
with  the  expenditure  of  the  company  fund  thereof  and  the  purchase 
of  supplies  for  the  use  of  the  said  barracks,  did,  on  August  4,  1915, 
upon  turning  over  the  command  of  said  barracks,  preliminary  to  his 

detachment  therefrom  on  said  day,  to  his  relief,  Captain  

— ,  U.  S.  Marine  Corps,  state  to  the  said ,  in  substance, 

that  all  financial  claims  against  the  barracks  aforesaid  had  been 
settled,  and  that  there  were  then  no  debts  outstanding  chargeable  to 
the  said  company  fund ;  whereas  he,  the  said  -  — ,  well  knew  that 
said  barracks  was,  on  the  day  above  mentioned,  indebted  to  one 
— ,  of  the  city  of , ,  in  the  sum  of  twenty- 
three  dollars  ($23),  for  supplies  furnished  by  him  to  said  t>arracks 
during  the  fiscal  year  ending  June  30,  1915,  which  supplies  had  been 

purchased  from  him  on  credit  by  the  said for  the  use  of  the 

barracks  aforesaid,  and  were  a  proper  charge  upon  said  company 
fund,  said  statement,  as  above  set  forth,  being  false,  and,  as  such, 

made  by  the  said to  the  said  -  -  knowingly  and  wilfully 

and  with  intent  to  deceive. 

Specification. — In  that  -  — ,  quartermaster  third  class, 

U.  S.  Navy,  serving  on  board  the  U.  S.  S. ,  having  on  June  2, 

1914,  entered  the  warrant  officer's  pantry  of  said  ship  in  company 
with  -  — ,  seaman,  U.  S.  Navy,  did,  on  or  about  June  3, 

1914,  upon  being  questioned  by  Commander ,  U.  S. 

Navy,  the  executive  officer  of  said  ship,  as  to  who  had  accompanied 
him,  the  said  -  — ,  on  the  occasion  specified,  state  to  the  said 
Commander  -  -  that  he  was  not  accompanied  by  any  person, 
which  statement  was  knowingly  false  and  intended  to  deceive. 


INSTRUCTIONS   FOR   COURTS  AND  BOARDS.  105 

Charge. — FORGING  A  SIGNATURE  FOR  THE  PURPOSE  OF  OBTAINING  PAY- 
MENT OF  A  CLAIM  AGAINST  THE  UNITED  STATES. 

Specification. — In  that  Assistant  Surgeon  ,  U.   S. 

Navy,  serving  at  the  United  States  Naval  Hospital,  -  , , 

did,  on  or  about  March  16,  1915,  upon  check  number  eight  hundred 
fifty-five  thousand  two  hundred  forty-six,  dated  March  15,  1915, 
drawn  upon  the  Treasurer  of  the  United  States  at  Washington,  Dis- 
trict of  Columbia,  by  Pay  Inspector ,  U.  S.  Navy,  pay- 
able to  the  order  of  " ,  U.  S.  N.,"  for  the  sum  of  sixty- 
five  dollars  and  fifty-six  cents  ($65.56) ,  due  Passed  Assistant  Surgeon 

,  U.  S.  Navy,  for  pay,  without  authority,  unlawfully 

make,  sign,  and  counterfeit  upon  the  back  of  said  check  the  signature 

of  " ,  U.  S.  N.,"  thus  making  said  check  payable  to 

bearer,  for  the  purpose  of  fraudulently  obtaining  payment  to  him, 

the  said  Assistant  Surgeon ,  the  claim  of  the  said 

— ,  U.  S.  Navy,  against  the  United  States  for  pay,  to  whom  the 
said  check  had  been  lawfully  sent  to  satisfy  said  claim. 

Charge.— FRAUD.     (See  C.  M.  O.  4,  1916,  3-4.) 

Specification. — In  that  -  ,  yeoman  first  class,  U.  S. 

Navy,  serving  on  board  the  U.  S.  S. ,  at  the  navy  yard, , 

— ,  did,  between  July  1,  1915,  and  August  7,  1915,  on  board  the 
aforesaid  ship,  knowingly  and  fraudulently  undercharge  on  the  pay 
roll  of  the  said  ship  for  the  then  current  quarter,  to  wit,  the  first 

quarter  of  the  fiscal  year,  1916,  to  his  own,  the  said 's  account, 

the  sum  of  nineteen  dollars  and  thirty-six  cents  ($19.36),  United 
States  money,  and  did  falsely  balance  the  discrepancy  resulting 
therefrom  on  the  said  pay  roll  by  knowingly  and  fraudulently  over- 
charging on  the  said  pay  roll  to  the  accounts  of  the  following-named 
men,  all  belonging  to  the  crew  of  the  said  ship  at  some  time  during 
the  quarter  aforesaid,  the  amounts  in  United  States  money  herein- 
after stated,  to  wit : : ,  machinist's  mate  first  class,  U.  S. 

Navy,  the  sum  of  two  dollars  and  seventy-five  cents  ($2.75)  ; 

— ,  gunner's  mate  second  class,  U.  S.  Navy,  three  dollars  and 

fifty  cents  ($3.50) ; -. ,  seaman,  U.  S.  Navy,  three  dollars 

and  five  cents  ($3.05)  ; ,  seaman,  U.  S.  Navy,  three  dol- 
lars ($3)  ; • ,  ordinary  seaman,  U.  S.  Navy,  two  dollars 

and  fifty  cents  ($2.50) ; ,  ordinary  seaman,  IT.  S.  Navy, 

two  dollars  ($2) ; ,  fireman  second  class,  U.  S.  Navy, 

two  dollars  and  fifty-six  cents  ($2.56) ;  the  aggregate  amount  over- 
charged being  a  total  of  nineteen  dollars  and  thirty-six  cents  ($19.36), 
United  States  money. 


106  INSTRUCTIONS   FOR  COURTS  AND  BOARDS. 

Charge. — FRAUDULENT  ENLISTMENT.     (See  C.  M.  O.  17,  1916,  5-8.) 

Specification. — In  that  -  — ,  private,  U.  S.  Marine  Corps, 

alias — ,  formerly  private,  U.  S.  Army,  did,  on  or  about 

December  8,  1915,  at  the  marine  barracks,  navy  yard, , , 

procure  himself  to  be  accepted  and  did  fraudulently  enlist  as  a 

private  in  the  U.  S.  Marine  Corps,  under  the  name  of , 

by  falsely  representing  that  he  had  never  been  discharged  from  the 
United  States  service  through  sentence  of  a  military  court  and  by 
deliberately  and  wilfully  concealing  from  the  recruiting  officer  the 
fact  that  he  had,  on  or  about  November  19, 1915,  while  serving  under 

the  name  and  rank  of ,  private,  been  discharged  from 

the  U.  S.  Army,  pursuant  to  the  sentence  of  a  general  court-martial, 
with  a  dishonorable  discharge;  and,  furthermore,  that  he,  the  said 
,  alias ,  has,  since  said  enlistment,  re- 
ceived pay  and  allowances  thereunder. 

Specification. — In  that  — ,  apprentice  seaman,  alias 

,  formerly  apprentice  seaman,  U.  S.  Navy,  did,  on 

or  about  September  30,  1915,  at  the  U.  S.  Navy  recruiting 
station,  Atlanta,  Georgia,  procure  himself  to  be  accepted  and  did 
fraudulently  enlist  as  an  apprentice  seaman  in  the  U.  S.  Navy,  under 

the  name  of ,  by  falsely  representing  that  he  had  had 

no  previous  service  in  the  U.  S.  Navy  and  that  he  had  never  been 
discharged  from  the  United  States  service  through  sentence  of  a 
military  court,  and  by  deliberately  and  wilfully  concealing  from  the 
recruiting  officer  the  fact  that  he  had,  on  or  about  April  23,  1914, 

while  serving  under  the  name  and  rate  of ,  apprentice 

seaman,  been  discharged  from  the  U.  S.  Navy,  pursuant  to  the  sen- 
tence of  a  general  court-martial,  with  a  dishonorable  discharge ;  and, 

furthermore,  that  he,  the  said  — : ,  alias ,  has, 

since  said  enlistment,  received  pay  and  allowances  thereunder. 

Specification. — In  that ,  fireman  third  class,  alias 

,  seaman,  U.  S.  Navy,  did,  on  or  about  February  21, 1915, 

at  the  U.  S.  Navy  recruiting  station,  Chicago,  Illinois,  procure  him- 
self to  be  accepted  and  did  fraudulently  enlist  as  a  coal  passer  in 
the  U.  S.  Navy,  under  the  name  of ,  by  falsely  repre- 
senting that  he  had  had  no  previous  service  in,  and  had  never  de- 
serted from,  the  U.  S.  Navy,  and  by  deliberately  and  wilfully  con- 
cealing from  the  recruiting  officer  the  fact  that  he  had,  on  or  about 

July  6, 1913,  while  serving  under  the  name  and  rate  of , 

seaman,  deserted  from  the  U.  S.  Navy  and  was  a  deserter  at  large. 

Specification. — In  that ,  apprentice  seaman,  formerly 

apprentice  seaman,  U.  S.  Navy,  did,  on  or  about  August  28,  1915, 


INSTRUCTIONS  FOR   COURTS  AND  BOARDS.  107 

at  the  U.  S.  Navy  recruiting  station,  Kansas  City,  Missouri,  pro- 
cure himself  to  be  accepted  and  did  fraudulently  enlist  as  an  ap- 
prentice seaman  in  the  U.  S.  Navy  by  falsely  representing  that  he 
had  had  no  previous  service  in  the  U.  S.  Navy,  and  that  he  had  never 
been  discharged  from  the  United  States  service  on  account  of  dis- 
ability, and  by  deliberately  and  wilfully  concealing  from  the  re- 
cruiting officer  the  fact  that  he  had,  on  or  about  January  11,  1915, 
while  serving  as  an  apprentice  seaman,  been  discharged  from  the 
U.  S.  Navy  for  physical  disability,  pursuant  to  a  recommendation 
of  a  medical  board  of  survey;  and,  furthermore,  that  he,  the  said 

.   has,   since   said   enlistment,   received   pay   and   allowances 

thereunder. 

/Specification. — In  that  -  — ,  apprentice  seaman,  U.  S. 

Navy,  alias  —  — ,  formerly  private,  U.  S.  Marine  Corps,  did, 

on  or  about  June  24,  1915,  on  board  the  U.  S.  S. ,  at , 

procure  himself. to  be  accepted  and  did  fraudulently  enlist  as  an 

apprentice  seaman  in  the  U.  S.  Navy,  under  the  name  of  

— ,  by  falsely  representing  that  he  had  never  deserted  from  the 
U..  S.  Marine  Corps,  and  by  deliberately  and  wilfully  concealing 
from  the  recruiting  officer  the  fact  that  he  had,  on  or  about  Novem- 
ber 7, 1911,  while  serving  under  the  name  and  rank  of , 

private,  deserted  from  the  U.  S.  Marine  Corps,  and  was  a  deserter 

at  large;  and,  furthermore,  that  he,  the  said  = ,  alias 

— ,  has,  since  said  enlistment,  received  pay  and  allow- 
ances thereunder. 

Specification. — In  that  -  — ,   apprentice  seaman,  alias 

— ,  formerly  ordinary  seaman,  U.  S.  Navy,  did,  on  or 

about  July  15,  1915,  on  board  the  U.  S.  S. ,  at ,  procure 

himself  to  be  accepted  and  did  fraudulently  enlist  as  an  apprentice 

seaman  in  the  U.  S.  Navy,  under  the  name  of ,  by 

falsely  representing  that  he  had  had  no  previous  service  in  the  U.  S. 
Navy,  and  by  deliberately  and  wilfully  concealing  from  the  recruit- 
ing officer  the  fact  that  he  had,  on  or  about  May  26,  1915,  while  serv- 
ing under  the  name  and  rate  of ,  ordinary  seamen, 

been  discharged  from  the  U.  S.  Navy,  for  inaptitude ;  and,  further- 
more, that  he,  the  said ,  alias ,  has,  since 

said  enlistment,  received  pay  and  allowances  thereunder. 

Charge. — GAMBLING. 

Specification. — In  that : — ,  seaman,  U.  S.  Navy, 

serving  on  board  the  U.  S.  S.  ,  did,  on  or  about  October  10, 

1912,  in  number  two  fireroom  of  said  vessel,  gamble  for  money  with 
cards. 

26450°— 17 8 


108  INSTRUCTIONS   FOR   COURTS  AND  BOARDS. 

Charge. — HAZING. 

(Triable  by  court-martial  ordered  by  the   Superintendent   of   the 
Naval  Academy.    See  Chapter  X.) 

Specification. — In  that  Midshipman ,  U.  S.  Navy, 

a  member  of  the  third  class  at  the  United  States  Naval  Academy, 
Annapolis,  Maryland,  and  serving  at  said  Naval  Academy,  did,  at  or 
about  7.45  a.  m.  April  3,  1914,  in  Bancroft  Hall  in  the  said  Naval 

Academy,  haze  Midshipman ,  U.  S.  Navy,  a  member 

of  the  fourth  class  at  said  Naval  Academy,  by  causing  the  said  Mid- 
shipman   to  stand  on  his  head  and  perform  calisthenic  exer- 
cises, therein  and  thereby  exercising  unwarranted  assumption  of 
authority  over  the  said  Midshipman  ,  causing  the  said  Mid- 
shipman    to  suffer  indignity,  humiliation,  hardship,  and 

oppression. 

Charge. — IMPROPERLY  HAZARDING  THE  VESSEL,  UNDER  His  COM- 
MAND, IN  CONSEQUENCE  OF  WHICH  SHE  WAS  RUN  UPON  A  ROCK 
AND  LOST. 

Specification. — In  that  Commander —  — ,  U.  S.  Navy, 

then  in  command  of  the  U.  S.  S. ,  while  said  ship  was  at  sea 

making  a  passage  from  to  ,  on  November  19,  1915, 

about  9  p.  m.,  the  weather  at  the  time  being  thick  and  foggy,  the 
night  dark,  and  the  currents  uncertain,  did  issue  written  night  orders 
in  substance  as  follows:  That  during  the  night  the  said  ship  - 
was  to  proceed  under  slow  speed,  and  was  to  steer  a  course  of  two 
hundred  forty  degrees,  by  standard  compass;  the  said  Commander 
-  knowing  at  the  time  he  issued  the  aforesaid  orders,  from  re- 
ports which  had  been  made  to  him  by  Lieutenant ,  U.  S. 

Navy,  the  navigator  of  said  ship  at  the  time,  and  from  calcula- 
tions which  he,  the  said  Lieutenant ,  had  made,  that  the  ship 

would  be,  at  the  time  the  course  was  to  be  changed  to  two  hundred 
forty  degrees,  by  standard  compass,  in  obedience  to  the  aforesaid 

night  orders,  about  thirty  miles  from  the Islands,  and  that 

the  said  course  of  two  hundred  forty  degrees,  by  standard  compass, 
would  head  the  said  ship  -  -  almost  directly  for  the  said  - 
Islands,  which  islands  it  was  dangerous  to  approach  on  a  dark  and 
foggy  night,  and  in  issuing  the  aforesaid  night  orders  he,  the  said 
Commander ,  did  improperly  hazard  the  ship  under  his  com- 
mand, which  ship,  while  being  run  in  obedience  to  the  aforesaid 
night  orders,  ran  upon  a  rock  at  about  4.05  a.  m.,  November  20, 

1915,  which  rock  was  close  to  the  southeast  end  of  the  East 

Island,  or  thereabouts,  and  in  consequence  of  which  striking  upon 
the  aforesaid  rock,  the  said  ship was  lost. 


INSTRUCTIONS   FOR  COURTS  AND  BOARDS.  109 

Charge. — IMPROPERLY  HAZARDING  THE  VESSEL  UNDER  His  COMMAND, 
IN  CONSEQUENCE  OF  WHICH  SHE  WAS  EUN  UPON  A  SHOAL  AND 
SERIOUSLY  INJURED. 

Specification. — In  that  Lieutenant ,  U.  S.  Navy,  be- 
ing in  command  of  the  U.  S.  S. ,  making  passage  from  -       — , 

,  to , ,  did,  on  or  about  June  10,  1916,  while  ap- 
proaching the  harbor  of  ,  cause  to  be  steered  a  course  that 

lay  over Reef,  near  said  harbor,  and  where  there  was  at  the 

same  time  available  a  wide,  clear,  and  deep  channel  to  the  eastward 
of  said  reef,  and  this  he  did  in  the  absence  of  any  necessity  of  shaping 
a  course  over  said  reef  rather  than  away  therefrom,  and  he,  the 

said  Lieutenant ,  did  then  and  there,  in  the  manner  aforesaid, 

suffer  the  vessel  under  his  command,  the  said  U.  S.  S. ,  to  be 

hazarded,  without  justifiable  cause,  in  consequence  of  which  hazard 

as  aforesaid  the  said  ship was,  on  or  about  the  date  aforesaid, 

then  and  there  run  upon  said Reef,  and  was  thereby,  at  the 

time  and  place  aforesaid,  seriously  injured. 

Charge. — KNOWINGLY  AND  WILFULLY  MISAPPROPRIATING  AND  AP- 
PLYING TO  His  OWN  USE  AND  BENEFIT  MONEY  OF  THE  UNITED 
STATES  INTENDED  FOR  THE  NAVAL  SERVICE  THEREOF. 

Specification.— In  that  Chief  Pay  Clerk  -  ,  U.  S.  Navy, 

did,  at  various  times  during  the  period  from  about  January  1,  1915, 
to  about  March  31,  1915,  exact  dates  unknown,  on  board  the  U.  S.  S. 
,  while  serving  on  board  said  ship  as  the  clerk  of  Passed  As- 
sistant Paymaster  -  ,  U.  S.  Navy,  serving  on  board  said 

ship  -  — ,  then  and  there,  in  the  course  of  his  employment  as 
aforesaid,  from  money  lawfully  delivered  by  the  United  States  to 

the  said  Passed  Assistant  Paymaster in  the  execution  of  his 

duties  as  paymaster  of  the  aforesaid  ship,  knowingly  and  wilfully 
misappropriate  money  of  the  United  States  intended  for  the  naval 
service  thereof,  to  the  value  of  six  hundred  dollars  ($600),  or  there- 
abouts, which  money  came  into  his,  the  said  's,  custody  and 

possession  in  the  course  of  his  employment  as  aforesaid,  and  he,  the 
said  -  — ,  did  then  and  there  apply  the  said  money  of  the  United 
States  to  his  own  use  and  benefit. 

Charge. — LEAVING   POST   BEFORE   BEING   REGULARLY  RELIEVED. 

Specification. — In  that ,  private,  U.  S.  Marine  Corps, 

serving  at  the  marine  barracks,  navy  yard, , ,  having,  on 

June  4,  1912,  been  regularly  posted  as  a  sentinel  on  post  number  four 
at  said  navy  yard,  did,  at  about  11.00  p.  m.,  on  said  date,  while  so 
posted,  leave  said  post  before  being  regularly  relieved, 


110  INSTRUCTIONS  FOE  COURTS  AND  BOARDS. 

Specification. — In  that ,  private,  U.  S.  Marine  Corps, 

serving  on  board  the  U.  S.  S. ,  having,  on  September  8,  1913, 

been  regularly  posted  as  a  sentinel  over  prisoners  on  board  said  ship, 
did,  between  6.00  and  8.00  p.  m.,  on  said  date,  while  so  posted,  leave 
said  post  before  being  regularly  relieved. 

Charge. — LEAVING  STATION  BEFORE  BEING  REGULARLY  RELIEVED. 

. 

Specification. — In  that  Lieutenant ,  U.  S.  Navy,  serv- 
ing on  board  the  U.  S.  S.  -  ,  having,  at  or  about  8.00  p.  in., 

May  24,  1912,  regularly  relieved  the  officer  of  the  deck  of  the  said 
ship,  did,  at  about  9.00  p.  m.,  of  the  same  day,  while  officer  of  the 
deck  of  the  said  ship,  leave  his  station  before  being  regularly  relieved. 

Specification. — In  that ,  private,  U.  S.  Marine  Corps, 

serving  at  the  marine  barracks,  navy  yard,  H ?  5  did,  on 

October  22,  1915,  while  acting  as  corporal  of  the  guard  at  the  main 
gate  of  said  yard,  absent  himself  from  his  station  before  being 
regularly  relieved,  and  did  remain  so  absent  for  a  period  of  about 
one  hour. 

Charge. — MAKING  FALSE  AND  FRAUDULENT  WRITTEN  REPORTS  FOR 
THE  PURPOSE  or  AIDING  OTHERS  TO  OBTAIN  THE  APPRO VAI/  OF 
CLAIMS  AGAINST  THE  UNITED  STATES. 

Specification. — In  that  Naval  Constructor ,  U.  S. 

Navy,  being,  on  or  about  May  1,  1915,  and  continuously  thereafter 

until  the  date  hereof,  serving  at  the  navy  yard,  , ,  as 

the  head  of  the  department  of -  at  said  yard,  and  it  being  a 

part  of  his  duty  as  such  head  of  department  to  supervise  and  control 
all  work  pertaining  to  said  department  and  to  have  the  general 
superintendence,  charge,  and  direction  of  all  persons  employed  in 
said  department,  and  it  being  also  a  part  of  his  duty,  when  doing 
work  for  another  department,  to  send  every  morning  through 
the  commandant  to  the  head  of  such  department  a  report  of  the 
number  and  class  of  men  employed,  with  their  rates  of  pay,  did, 
from  time  to  time,  between  May  28,  1915,  and  June  30,  1915, 
cause  to  be  prepared  and  transmitted  over  his  official  signature,  as 
the  head  of  the  department  of  —  — ,  to  the  heads  of  other  depart- 
ments .at  said  yard,  to  wit,  to  the  heads  of  the  departments  of 

, ,  and  — ,  statements  of  labor  performed  for  such 

other  departments,  respectively,  which  statements  contained  the 
names  of  laborers  and  mechanics  who  were  credited  with  having  ren- 
dered, respectively,  one  and  five-eighths  days'  service  on  certain 

days  therein  specified;  whereas,  in  fact,  as  he,  the  said ,  well 

knew,  such  laborers  and  mechanics  had  rendered  and  were  entitled  to 
be  credited  with  one  and  three-eighths  days'  service  only  on  such 


INSTRUCTIONS  FOR  COURTS  AND  BOARDS.  Ill 

days;  and  the  said did,  therein  and  thereby,  make  false  and 

fraudulent  written  reports  of  labor  performed  by  employees  of  the 
department  under  his  charge  for  the  purpose  of  aiding  others  to 
obtain  the  approval  of  claims  against  the  United  States. 

Charge. — MAKING  AND  USING  FALSE  PAPERS  FOR  THE  PURPOSE  OF 
AIDING  OTHERS  TO  OBTAIN  THE  APPROVAL  AND  PAYMENT  OF  A 
CLAIM  AGAINST  THE  UNITED  STATES. 

Specification. — In  that  Colonel ,  U.  S.  Marine  Corps, 

being  in  command  of  the  marine  barracks,  navy  yard, ,  —       — , 

having,  on  October  31,  1915,  made  a  requisition  on  Colonel 

,  quartermaster,  U.  S.  Marine  Corps,  in  words  and  figures 

as  follows:  "*  *,"  and  the  said  quartermaster  of  the  Marine 

Corps,  on  November  3,  1915,  the  public  exigency  requiring  the  im- 
mediate delivery  of  the  articles  enumerated  in  said  requisition,  having 

ordered  that  they  be  procured  by  open  purchase,  and  the  said 

having  purchased  said  articles  from ,  Fulton  Street, 

Brooklyn,  New  York, did,  on  or  about  November  15,  1915,  in 

order  to  obtain  the  approval,  and  payment  to  said  firm,  of  its  claim 
against  the  United  States  for  said  articles,  prepare  and  forward 
to  said  quartermaster,  U.  S.  Marine  Corps,  an  open  purchase  voucher, 

in  words  and  figures  as  follows :  "  *     *     *,"  the  said  well 

knowing  that  the  articles  enumerated  in  said  voucher, ,  were 

not  inspected  and  received  by  him  at  the  navy  yard, , , 

and  therefore  that  the  certificates  on  said  voucher  made  and  signed 
by  him  that  the  said  articles  were  so  inspected  and  received  were 
false. 

Charge. — MALINGERING. 

Specification. — In  that ,  private,  U.  S.  Marine  Corps, 

serving  at  the  marine  barracks,  navy  yard, , ,  did,  on  or 

about  April  21,  1911,  while  a  patient  at  the  United  States  Naval 
Hospital,  ,  ,  at  said  hospital,  feign  to  be  ill  and  in- 
capacitated for  the  proper  performance  of  duty  by  pretending  that 
he  could  not  speak  aloud,  whereas  he  was,  in  fact,  capable  of  speaking 
aloud,  and  did  continue  in  the  aforesaid  pretension  until  on  or  about 

August  9,  1911 ;  and  he,  the  said ,  was,  in  consequence 

of  said  pretension,  retained  as  a  patient  in  the  said  hospital  between 
the  aforesaid  dates,  and  was  thereby  excused  from  performing  duty 
between  the  said  dates. 

Charge. — MALPRACTICE. 

Specification. — In  that  Surgeon — ,  U.  S.  Navy,  serv- 
ing at  the  navy  yard, , ,  having,  on  November  2,  1912, 


112  INSTRUCTIONS  FOR  COURTS  AND  BOARDS. 

at  the  naval  hospital  at  said  navy  yard,  been  applied  to  for  treat- 
ment for  a  disease  of  the  eyes  by  Lieutenant ,  U.  S. 

Navy,  stationed  at  the  navy  yard  aforesaid,  did,  on  the  date  and  at 
the  place  aforesaid,  through  reprehensible  ignorance  and  careless- 
ness, apply  a  caustic  to  the  eyes  and  eyelids  of  the  said  Lieutenant 

•  in  such  manner  as  to  cause  serious  injury  to  both  eyes 

of  the  said  Lieutenant ,  and  seriously  to  impair  the 

vision  of  the  said  Lieutenant . 

Charge. — MALTREATING  A  PERSON  SUBJECT  TO  His  ORDERS. 

Specification. — In  that  Commander ,  U.  S.  Navy,  being  in 

command  of  the  U.  S.  S.  -  — ,  did,  on  or  about  March  5,  1915, 

while  the  said  ship  was  at  -  — , ,  maltreat  -  — , 

then  a  fireman  second  class,  U.  S.  Navy,  and  stationed  on  board  said 
ship,  by  causing  him,  the  said  ,  to  be  confined  in  a  strait- 
jacket  on  board  said  ship  without  justifiable  cause  therefor  and 
to  be  kept  so  confined  during  a  period  of  about  seven  days. 

Specification. — In  that  Lieutenant  — ,  U.  S.  Navy,  serv- 
ing on  board  the  U.  S.  S.  ,  did,  on  April  6,  1915,  on  board 

said  ship,  wilfully  and  without  justifiable  cause  assault  and  kick 
— ,  mess  attendant  third  class,  U.  S.  Navy,  serving  on 
board  the  said  ship. 

Charge. — MANSLAUGHTER. 

Specification. — In  that  -  — ,  private,  U.  S.  Marine  Corps, 

serving  at  the  United  States  marine  barracks, ,  -   ,  did, 

at  about  11.30  p.  m.,  on  October  23,  1915,  in  a  house  occupied  by 

one ,  at , ,  feloniously  and  wilfully,  and 

without  justifiable  cause,  assault  and  strike  one ,  sea- 
man, U.  S.  Navy,  with  a  certain  blunt  instrument,  further  descrip- 
tion unknown,  which  he,  the  said  ,  then  and  there  had  and 

held  in  his  hands,  then  and  there  inflicting  a  mortal  wound  in  and 

upon  the  left  side  of  the  head  of  the  said  ,  of  which  said 

mortal  wound  so  inflicted,  as  aforesaid,  the  said died  at  about 

1.20  a,  m.,  on  October  31,  1915. 

Charge. — MAYHEM, 

Specification. — In  that  — ,  boilermaker,  U.  S.  Navy, 

serving  on  board  the  U.  S.  S. ,  did,  on  or  about  May  28,  1915, 

on  board  said  ship,  assault — ,  coal  passer,  U.  S.  Navy, 

stationed  on  the  said  ship,  and  did  then  and  there  unlawfully  and 
maliciously  bite  off  the  right  forefinger  of  the  said 
thereby  maiming  and  wounding  the  said 


INSTRUCTIONS  FOR  COURTS  AND  BOARDS.  113 

Charge. — MURDER. 

(Note. — See  article  6  of  the  Articles  for  the  Government  of  tlie 
Navy,  which  has  been  construed  as  restricting  the  jurisdiction  of  a 
naval  general  court-martial  over  the  crime  of  murder  to  cases  where 
this  offense  is  committed  without  the  territorial  jurisdiction  of  the 
United  States.} 

Specification. — In  that  -  — ,  fireman  second  class,  U.  S. 

Navy,  serving  on  board  the  U.  S.  S. ,  at  anchor  off  Cherbourg, 

France,  did,  at  or  about  9.00  a.  m.  on  November  18,  1913,  while  on 
liberty  ashore  at  or  near  the  junction  of  the  streets  known  as  - 
and  -         -  in  the  city  of  Cherbourg,  France,  wilfully,  feloniously, 
with   malice    aforethought,    and    without   justifiable    cause,    attack 

with  a  deadly  weapon,  to  wit,  a  knife, ,  water  tender, 

U.  S.  Navy,  serving  on  board  the  said  ship ,  and  did  then  and 

there  inflict,  with  the  knife  aforesaid,  a  mortal  wound  on  the  left 
side  of  the  chest  of  the  said ,  of  which  said  mortal  wound,  in- 
flicted as  aforesaid,  the  said died  at  about  1.00  p.  m.  on  the 

date  aforesaid. 

Charge. — NEGLECT  OF  DUTY. 

Specification. — In  that  Lieutenant  ,  U.  S.  Navy, 

while  serving  on  board  the  U.  S.  S.  as  navigator  of  said 

vessel,  making  passage  from  -  -  to ,  did,  on  May  4,  1913, 

although  the  weather  permitted,  neglect  and  fail  to  obtain  the  local 
deviation  of  the  standard  compass  of  said  ship;  and  the  said  Lieu- 
tenant   did  thereby  neglect  his  duty  as  navigator  of  said  ship. 

Specification. — In  that  Chief  Boatswain  —  —  ,  U.  S. 

Navy,  commanding  United  States  coal  barge  number  two,  laden  with 

coal,  at  sea,  in  tow  of  the  U.  S.  S.  —  — ,  making  passage  from 

to  -  — ,  did,  between  10.00  p.  m.,  December  19, 1915,  and  6.00  a.  m., 
December  20,  1915,  neglect  and  fail  to  keep  himself  informed  at 
proper  intervals  of  the  depth  of  water  in  said  barge  number  two,  and 
did  therein  and  thereby  neglect  his  duty  as  commanding  officer  of 
said  barge. 

Specification. — In  that  Chief  Boatswain  ,  U.  S. 

Navy,  commanding  United  States  coal  barge  number  two,  laden 

with  coal,  at  sea,  in  tow  of  the  U.  S.  S. ,  making  passage  from 

to  -  — ,  did,  between  10.00  p.  m.,  December  19,  1915,  and 

6.00  a.  m.,  December  20,  1915,  neglect  and  fail  to  cause  to  be  kept  a 
steam  pressure  in  the  boiler  of  said  barge  sufficient  to  work  the  pump, 
and  did  therein  and  thereby  neglect  his  duty  as  commanding  officer 
of  said  barge. 

Specification. — In  that  Chief  Boatswain  ,  U.  S. 

Navy,  commanding  United  States  coal  barge  number  two,  laden  with 


114  INSTRUCTIONS   FOR   COURTS  AND  BOARDS. 

coal,  at  sea,  in  tow  of  the  U.  S.  S. ,  making  passage  from 

to  -  — ,  having  between  10.00  p.  m.,  December  19,  1915,  and  6.00 
a.  m,,  December  20,  1915,  negligently  allowed  water  to  enter  said 
barge  to  a  hazardous  depth,  did,  at  or  about  7.00  a.  m.,  December  20, 
1915,  in  latitude  twenty-six  degrees  and  one  minute  North,  and 
longitude  seventy-nine  degrees  and  forty-seven  minutes  West,  or 
thereabouts,  abandon  said  barge  without  making  an  effort  to  free 
her  from  such  water  or  to  save  any  part  of  her  outfit,  and  the  said 
-  did  therein  and  thereby  neglect  his  duty  as  commanding 
officer  of  said  barge. 

Specification. — In  that  Lieutenant  (junior  grade)  -  — , 

U.  S.'Navy,  commanding  the  U.  S.  S.  -  -  engaged  in  towing  coal 
barge  number  two,  laden  with  coal,  making  passage  from  -  -  to 
— ,  which  barge  was,  at  or  about  7.00  a.  m.,  December  20, 1915,  in 
latitude  twenty-six  degrees  and  one  minute  North,  and  longitude 
seventy-nine  degrees  and  forty-seven  minutes  West,  or  thereabouts, 
abandoned  by  her  commanding  officer,  Chief  Boatswain  • 

— ,  U.  S.  Navy,  and  crew.,  and  he,  the  said  -       — ,  having  been 
nformed  that  water  had  entered  said  barge  to  a  hazardous  depth, 
did  fail  to  send  a  relief  crew  on  board  said  barge  and  did  therein 
and  thereby  neglect  his  duty  as  commanding  officer  of  said  ship. 

Specification. — In  that  -  — ,  private,  U.  S.  Marine  Corps, 

serving  at  the  marine  barracks,  navy  yard, , ,  having,  at 

or  about  5.00  a.  m.  on  September  9,  1916,  been  regularly  posted  as 
a  sentinel  over  prisoners  confined  in  the  cells  at  said  barracks,  did, 

between  5.00  a.  m.  and  5.45  a.  m.  on  the  day  aforesaid,  suffer 

— ,  fireman  third  class,  a  prisoner  confined  in  one  of  the  aforesaid 

cells,  to  escape  by  way  of  the  window  of  the  cell  in  which  the  said 

—was  confined,  notwithstanding  the  fact  that  the  window  of  said 

cell  was  protected  by  bars,  which  bars  were,  at  the  time  the  said 

was  posted  as  aforesaid,  secured  in  such  a  way  as  to  prevent 

the  exit  of  the  said  prisoner  through  the  aforesaid  window ;  and  the 
said  -  -  did  thereby  neglect  his  duty  as  sentinel  on  said  post. 

Specification. — In   that — ,   corporal,  U.    S.   Marine 

Corps,  serving  at  the  marine  barracks,  navy  yard,  ,  -       — , 

being,  on  January  29,  1915,  on  duty  as  corporal  of  the  prison  guard 
at  said  barracks,  and  having,  at  or  about  7.00  p.  m.  on  the  said  day, 
taken  the  prisoners  under  his  charge,  eleven  in  number,  more  or  less, 
from  the  cells  on  board  the  U.  S.  S.  -  — ,  where  they  were  con- 
fined, to  the  sinks  on  the  dock  for  the  purpose  of  policing  said  pris- 
oners, did,  after  said  prisoners  had  entered  the  sinks  aforesaid,  leave 
them  under  a  guard  consisting  of  two  sentinels,  and  did  go  aboard 

said  ship ,  moored  to  the  dock  abreast  of  said  sinks,  where  he 

remained  for  a  period  of  about  ten  minutes,  and  upon  his  return 
from  said  vessel  did  neglect  and  fail  to  verify  the  number  of  said 


INSTRUCTIONS  FOR  COURTS  AND  BOARDS.  115 

prisoners  before  taking  them  again  on  board  said  ship ;  and  the  said 

did  therein  and  thereby  neglect  his  duty  as  corporal 

of  the  guard,  in  consequence  of  which  neglect  one  of  the  prisoners 

hereinbefore  mentioned, ,  private,  U.  S.  Marine  Corps, 

did,  between  7.00  p.  m.  and  7.30  p.  m.,  on  the  day  aforesaid,  escape. 

Charge. — NEGLIGENCE  IN  OBEYING  ORDERS. 

Specification. — In  that  First  Lieutenant  —          ,  U.  S.  Ma- 
rine  Corps,   serving   at   the  marine   barracks,   navy   yard,   -        — , 
— ,  having  on  December  9,  1915,  been  duly  discharged  from  at- 
tendance as  a  witness  before  a  court  of  inquiry  in  session  at  the 

navy  yard, ,  with  orders  from  the  Secretary  of  the 

Navy  to  proceed  to  his  station,  at ,  did  neglect  and  fail  to 

report  in  obedience  thereto  until  about  4.30  p.  m.  December  15,  1915 ; 
and  the  said  -  -  was  thereby  negligent  in  obeying  orders. 

Charge. — PERJURY. 

(For  definition  see  Naval  Digest,  1916,  p.  458 ;  see  also  section  79  and  C.  M.  O. 
51,  1914.) 

Specification. — In  that ,  fireman  second  class,  U.  S. 

Navy,  a  prisoner  in  the  naval  prison,  navy  yard,  -  — ,  —  — ,  hav- 
ing, on  February  24, 1915,  been  duly  sworn  as  a  witness  before  a  gen- 
eral court-martial  by  the  president  thereof,  said  court-martial  being 

then  convened  on  board  the  U.  S.  S. ,  at , ,  did, 

wilfully  and  contrary  to  said  oath,  testify  as  follows  (here  quote  ver- 
batim the  testimony  containing  false  statements),  which  testimony 
that  (here  quote  verbatim  the  false  statement)  was  false;  whereas,  in 
truth  and  in  fact  (here  allege  affirmatively  what  was  the  truth) ;  and 

the  said  false  testimony  was  known  by  the  said to  be  false, 

was  material  to  the  issue  then  and  there  being  tried,  and  was  given 
with  the  intent  to  deceive  the  said  general  court-martial. 

Specification. — In  that  Ensign ,  U.  S.  Navy,  while 

serving  on  board  the  U.  S.  S. at  the  navy  yard, ,  —  — , 

having,  on  or  about  March  3,  1914,  at  his  own  request,  been  duly 
sworn  as  a  witness  before  a  court  of  inquiry,  by  the  president  of 
said  court,  the  said  court  of  inquiry  being  then  and  there  convened 
at  the  navy  yard  aforesaid  by  order  of  the  Secretary  of  the  Navy 
for  the  purpose  of  inquiring  into  a  report  made  against  him,  the 

said ,  by  the  commanding  officer  of  the  U.  S.  S. ,  and 

before  which  said  court,  he,  the  said ,  was  then  and  there  an  in- 
terested party,  did,  then  and  there,  wilfully,  falsely,  and  corruptly, 
and  contrary  to  said  oath,  testify  in  answer  to  the  question  asked  him, 
the  said  -  — ,  by  counsel  then  and  there  representing  the  said 
,  "  Will  you  state  all  you  know  regarding  the  leather  hand- 


116  INSTRUCTIONS  FOR  COURTS  AND  BOARDS. 

bag  that  has  been  in  the  custody  of  the  commanding  officer  of  the 

since  January  28,  1914?  "  in  part  as  follows:  "Among  other 

things  about  the  day  before  Thanksgiving,  I  purchased  this  leather 

handbag  at  Madame 's,  together  with  several  other  articles  " ; 

which  said  testimony  that  stated,  "  I  purchased  this  leather  hand- 
bag at  Madame 's,"  was  false;  whereas,  in  truth  and  in  fact, 

the  said did  not  purchase  the  said  leather  handbag  at  the 

said  Madame  -  — 's,  or  elsewhere  at  the  time  aforesaid,  or  at  any 
other  time;  and  whereas,  in  truth  and  in  fact,  the  said  —  — ,  had, 
on  or  about  January  14,  1914,  feloniously  taken,  stolen,  and  carried 
away  said  leather  handbag  of  the  value  of  about  ten  dollars  and 
eighty-five  cents  ($10.85),  from  the  stateroom  of  Ensign  — 

,  U.  S.  Navy,  on  board  said  ship ,  said  handbag  being 

the  property  of  -  ,  boatswain's  mate  first  class,  U.  S. 

Navy,  and  the  testimony  last  aforesaid  was  then  and  there  known  by 
the  said  -  —  to  be  false,  was  material  to  the  issue  then  and  there 
being  inquired  into  by  said  court  of  inquiry,  and  was  given  with 
intent  to  deceive  said  court  of  inquiry. 

Charge. — RAPE. 

Specification. — In  that  -  ,  fireman  second  class,  U.  S. 

Navy,  serving  on  board  the  U.  S.  S. at  the  navy  yard,  —       — , 

,  did,  between  4.00  and  5.00  p.  m.  on  July  25,  1914,  in  the 

said  navy  yard,  near  the  U.  S.  S. ,  forcibly  make  an  assault 

in  and  upon  the  body  of ,  and  did,  feloniously  and 

against  her,  the  said "s,  will,  forcibly  ravish  and  car- 
nally and  unlawfully  know  her,  the  said . 

Charge. — RESISTING  ARREST. 

Specification. — In  that ,  seaman,  U.  S.  Navy,  serving 

on  board  the  U.  S.  S.  -     — ,  did,  on  board  said  ship,  on  August  24, 

1915,  while  being  lawfully  placed  in  confinement  by , 

master  at  arms  first  class,  U.  S.  Navy,  forcibly  resist  arrest. 

Specification. — In  that ,  private,  U.  S.  Marine  Corps, 

serving  at  the  marine  barracks,  navy  yard,  , ,  did,  on 

or  about  September  25,  1915,  at  said  navy  yard,  while  being  lawfully 
placed  under  arrest  by  -  — ,  corporal,  U.  S.  Marine  Corps, 

on  duty  as  corporal  of  the  guard  at  said  barracks,  forcibly  resist 
arrest. 

Charge.— JOBBERY.     (See  C.  M.  O.  8,  1913,  6-7.) 

Specification. — In  that ,  trumpeter,  U.   S.  Marine 

Corps,  serving  at  the  marine  barracks,  navy  yard, ,  -       — , 

did,  on  or  about  April  3, 1915,  in Creek,  near  said  navy  yard, 


INSTRUCTIONS  FOR  COURTS  AND  BOARDS.  11 7 

with  force  and  violence,  feloniously  make  an  assault  upon 

,  a  constable  of  Beaufort  County,  in  said  State,  then  and  there 

in  the  execution  of  his  office,  and  did  feloniously  rob,  steal,  take,  and 

carry  away  from  him,  the  said  Constable  ,  two  barrels  of 

beer,  value  unknown,  lawfully  seized  and  held  by  him,  the  said  Con- 
stable   ,  under  the  laws  of  the  State  of . 

Charge. — SCANDALOUS   CONDUCT  TENDING  TO  THE  DESTRUCTION   OF 
GOOD  MORALS.     (See  section  67.) 

Specif  cation. — In  that  Paymaster  -  ,  IT.  S.  Navy, 

while  serving  on  board  the  U.  S.  S.  -  — ,  did,  on  about  Septem- 
ber 15,  1915,  render  to  the  Bureau  of  Supplies  and  Accounts,  Navy 
Department,  a  monthly  summary  statement  for  the  month  ending 
August  31, 1915,  in  which  he  reported  that,  of  the  balance  due  to  the 

United  States  by  him  as  pay  officer  of  the  said  ship ,  there  was 

on  deposit  in  the  subtreasury  under  "  General  .account  of  advances," 
on  August  31,  1915,  the  sum  of  twenty-four  thousand  two  hundred 
and  six  dollars  ($24,206)  ;  whereas,  on  the  said  date  there  was  on 
deposit  to  his  credit,  in  the  subtreasury  at  New  York,  the  sum  of 
seven  thousand  seven  hundred  and  three  dollars  and  thirty-three 
cents  ($7,703.33) ,  with  outstanding  checks  against  that  credit  amount- 
ing to  six  hundred  and  twenty-five  dollars  ($625),  and  in  the  sub- 
treasury  at  San  Francisco  the  sum  of  thirteen  thousand  five  hundred 
and  eighty-seven  dollars  and  fifty  cents  ($13,587.50) ,  with  outstand- 
ing checks  against  said  credit  amounting  to  one  thousand  seven  hun- 
dred and  sixty -nine  dollars  and  ninety  cents  ($1,769.90) ;  and,  whereas, 

there  remained* subject  to  check  by  the  said in  the  subtreasury 

at  New  York  the  sum  of  seven  thousand  and  seventy-eight  dollars  and 
thirty-three  cents  ($7,078.33),  and  in  the  subtreasury  of  San  Fran- 
cisco the  sum  of  eleven  thousand  eight  hundred  and  seventeen  dollars 
and  sixty  cents  ($11,817.60),  making  a  total  amount  of  only  eighteen 
thousand  eight  hundred  and  ninety-five  dollars  and  ninety-three 
cents  ($18,895.93)  subject  to  his  check  in  the  aforesaid  subtreasuries, 
the  said  -  —  did,  in  and  by  said  summary  statement,  knowingly 
and  wilfully  render  a  false  and  fraudulent  return  of  balances  to  his 
credit  in  the  subtreasuries  at  New  York  and  San  Francisco,  as 
aforesaid. 

Specification. — In  that  -  ,  boatswain's  mate  second 

class,  and ,  ordinary  seaman,  U.  S.  Navy,  serving  on 

board  the  U.  S.  S. ,  were,  on  May  13,  1915,  in  the  ordnance 

storeroom  of  said  ship,  found  lying  together,  each  with  his  person 
indecently  exposed  and  in  contact  with  that  of  the  other. 

Specification. — In  that ,  electrician  second  class,  U. 

S.  Navy,  having,  at  some  time  during  June,  1914,  exact  date  un- 


118  INSTRUCTIONS  FOR  COURTS  AND  BOARDS. 

known,  while  serving  on  board  the  U.  S.  S. ,  then  at , 

,  seduced  one ,  an  unmarried  woman  of  about 

eighteen  years  of  age  and  of  previous  chaste  character,  did,  on  or 
about  November  21,  1914,  while  serving  on  board  the  said  ship, 
then  at  Norfolk,  Virginia,  knowingly  persuade,  induce,  and  entice 

the  said to  go  from  —  — , ,  to , , 

with  the  intent  and  purpose  on  his,  the  said  —  — 's,  part  that  the 
said should  engage  in  improper  and  illicit  sexual  re- 
lations with  him,  the  said  -  — ,  and  did  in  furtherance  of  said 

purpose  then  and  there  send  the  said a  sum  of  money 

requisite  for  and  intended  for  the  purpose  of  procuring  a  ticket  for 
her  transportation  from , ,  to — ,  -  ,  as  a  pas- 
senger upon  a  common  carrier  engaged  in  interstate  commerce,  and 
did  then  and  there,  therein  and  thereby,  unlawfully  and  knowingly 

cause  her,  the  said ,  to  be  transported  between  the 

places  aforesaid  as  a  passenger  on  a  common  carrier  engaged  in  in- 
terstate commerce  for  the  unlawful  purpose  aforesaid. 

Specification. — In  that ,  electrician  second  class,  U. 

S.  Navy,  having  at  some  time  during  June,  1914,  exact  date  un- 
known, while  serving  on  board  the  U.  S.  S. • — ,  then  at , 

,  seduced  one  -  — ,  an  unmarried  woman  of  about  eighteen 

years  of  age  and  of  previous  chaste  character,  did,  during  a  period 
of  about  two  weeks  beginning  on  or  about  November  21,  1914,  while 

serving  on  board  the  said  ship,  then  at ,  — ,  unlawfully 

cohabit  and  live  with  as  man  and  wife,  and  have  improper  and 

illicit  sexual  relations  with  the  aforesaid  ,  who  was  not  the 

wife  of  the  said ,  in  a  boarding  house  located  at  Dumber • 

-  Street, , . 

Specification. — In  that ,  chief  electrician,  U.  S.  Navy, 

serving  at  the  navy  yard, , ,  did,  on  or  about  March  1, 

1915,  in  the  city  of ,  induce ,  of  Norfolk, 

Virginia,  to  cash  a  check  drawn  by  him,  the  said ,  upon  the 

Bank  of  Berkley,  in  the  sum  of  ten  dollars  ($10) ;  and  he,  the  said 
— ,  well  knowing  that  he  did  not  have  at  the  time  of  drawing 
said  check  sufficient  funds  in  said  bank  to  provide  for  its  payment, 
did  thereafter  wholly  neglect  and  fail  to  provide  therefor,  and  did 
allow  said  check,  upon  presentation  at  said  bank,  to  be  dishonored 

because  of  the  fact  that  he,  the  said ,  had  at  that  time  no  funds 

on  deposit  in  said  bank. 

Specification. — In  that ,  chief  gunner's  mate,  U.  S. 

Navy,  serving  at  the  navy  yard,  ,  -  ,  having  between 

December  3,  1915,  and  January  1,  1916,  become  justly  indebted  to 

,  of  Norfolk,  Virginia,  in  the  sum  of  twenty-seven 

dollars  and  twenty-five  cents  ($27.25),  and  having  paid  to  said  com- 
pany on  January  25, 1916,  the  sum  of  five  dollars  ($5),  and  on  Janu- 


INSTRUCTIONS  FOR  COURTS  AND  BOARDS.  119 

ary  27,  1916,  the  sum  of  four  dollars  ($4),  and  being  thereafter,  to 

wit,  since  about  January  27,  1916,  indebted  to in  the 

sum  of  eighteen  dollars  and  twenty-five  cents  ($18.25),  did,  although 
often  requested  so  to  do,  neglect  and  fail,  and  has  ever  since  neglected 
and  failed,  to  pay  to  said  company  the  said  sum  of  eighteen  dollars 
and  twenty-five  cents  ($18.25),  due  and  owing  to  the  said  company, 
or  any  portion  thereof. 

Specification. — In  that ,  a  corporal,  U.  S.  Marine 

Corps,  having,  on  or  about  January  30,  1915,  while  serving  as  post 
exchange  steward  at  the  United  States  marine  barracks,  nav}^  yard, 

, ,  been  intrusted,  in  the  post  exchange  at  said  barracks, 

by  Captain ,  U.  S.  Marine  Corps,  post  exchange  officer 

at  the  said  barracks,  with  a  bank  check,  numbered  three  hundred 
eighty  one,  and  dated  January  30,  1915,  for  the  amount  of  two  hun- 
dred forty-five  dollars  and  sixty-four  cents  ($245.64) ,  United  States 

money,  drawn  by  the  said  Captain ,  as  post  exchange  officer,  on 

the  National  City  Bank, , — ,  from  the  account  therein  of 

the  said  post  exchange,  and  made  payable  to  the Tobacco  Com- 
pany in  payment  of  the  amount  due  the  said Tobacco  Com- 
pany by  the  said  post  exchange  at  said  barracks,  did,  on  the  date 
aforesaid  and  in  the  post  exchange  aforesaid,  wilfully  and  feloni- 
ously erase  and  remove  from  the  face  of  the  check  aforesaid  the  name 

of  the  said  Tobacco  Company  as  payee,  and  in  substitute 

therefor  did  wilfully  and  feloniously,  and  with  intent  to  defraud, 
make  and  forge  thereon  the  name  of as  payee. 

/Specification. — In  that ,  seaman,  U.  S.  Navy,  serving 

at  the  United  States  Naval  Training  Station  at , ,  did, 

on  or  about  October  16,  1915,  at  .the  post  office  at  the  said  training 
station,  knowingly,  wilfully,  and  fraudulently  attempt  to  obtain  and 
receive  into  his  possession  from  the  said  post  office  a  registered  letter 

addressed  as  follows,  to  wit:  " ,  U.  S.  S. , , 

,"  and  forwarded  to  said  training  station,  by  falsely  and 

fraudulently  representing  that  he,  the  said  ,  was  the  said 

to  whom  the  said  registered  letter  was  addressed. 

Specification. — In  that ,  yeoman  second  class,  U.  S. 

Navy,  did,  on  or  about  November  13,  1915,  at  the  United  States 

Navy  recruiting  station, , ,  while  serving  on  board  the 

U.  S.  S.  ,  at  that  time  loaned  by  the  United  States  to  the 

Naval  Militia  of  the  State  of ,  wilfully  and  unlawfully 

attempt  to  bribe : ,  chief  yeoman,  U.  S.  Navy,  serving 

at  the  said  recruiting  station,  to  procure  unlawfully  and  fraudulently 

for  him,  the  said ,  in  return  for  and  in  consideration  of  the 

sum  of  twenty-five  dollars  ($25)  United  States  money,  copies  of  cer- 
tain confidential  questions  then  in  the  lawful  custody  of  Lieutenant 
Commander ,  U.  S.  Navy,  who  was  in  charge  of  said  re- 


120  INSTRUCTIONS  FOE  COURTS  AND  BOARDS. 

cruiting  station,  and  intended  for  the  examination  of  Commander 

,  Naval  Militia,  State  of ,  in  order  that  he,  the 

said ,  might  give  the  said  questions  to  the  said  Commander 

,  Naval  Militia,  State  of . 

Specification. — In  that ,  landsman  for  electrician, 

U.  S.  Navy,  did,  on  or  about  December  21,  1915,  on  board  the  re- 
ceiving ship  at  ,  ,  while  serving  on  board  said  ship, 

unlawfully  have  in  his  possession  one  gold  watch,  of  the  value  of 
about  thirty-five  dollars  ($35),  and  one  gold  chain,  of  the  value  of 

about  seven  dollars  ($7),  both  the  property  of ,  seaman, 

IT.  S.  Navy;  and  eight  dollars  ($8)  in  United  States  money,  the 
property  of ,  electrician  third  class,  U.  S.  Navy. 

Specifaation.— JLJI  that ,  private,  U.  S.  Marine  Corps, 

serving  at  the  marine  barracks,  navy  yard,  ,  ,  did,  on 

or  about  June  18,  1915,  feloniously  take,  steal,  and  carry  away  from 
the  authorized  receptacle  for  mail  to  be  distributed,  in  the  office  of 
the  first  sergeant  of  the  first  company,  at  the  aforesaid  barracks, 
and  with  felonious  intent  did  open  and  take  from  a  letter  addressed 
to ,  private,  U.  S.  Marine  Corps,  serving  at  the  afore- 
said marine  barracks,  a  warrant  drawn  on  the  Treasurer  of  the 
United  States  at  Washington,  District  of  Columbia,  by  the  Auditor 
for  the  Navy,  Treasury  Department,  Washington,  District  of  Co- 
lumbia, said  warrant  being  a  pecuniary  obligation  of  the  United 
States  for  arrears  in  pay  due  the  person  named  therein,  as  follows: 
Navy  warrant  number  eight  thousand  one  hundred  seventy-seven  in 

favor  of — ,  private,  U.  S.  Marine  Corps,  for  twelve 

dollars  and  ninety- four  cents  ($12.94) ,  said  warrant  being  drawn  on 
June  4,  1915. 

Specification. — In  that ,  chief  master- at- arms,  U.  S. 

Navy,  serving  on  board  the  receiving  ship  at  the  navy  yard, , 

,  did,  on  or  about  April  1,  1911,  on  board  said  ship,  conspire 

and  agree  with ,  master-at-arms  third  class,  U.  S.  Navy, 

stationed  on  board  said  ship,  to  demand  from  and  cause  to  be  paid 

to  them,  the  said and ,  by • — ,  seaman,  U.  S. 

Navy,  and ,  fireman  second  class,  U.  S.  Navy,  both  sta- 
tioned on  board  the  said  ship,  and  certain  other  enlisted  men,  names 
unknown,  stationed  on  board  the  said  ship,  money  for  the  detail  and 
relief  of  the  said and ,  and  of  the  aforesaid  other  en- 
listed men  as  messmen  on  board  said  ship. 

Specification. — In  that ,  chief  master-at-arms,  U.  S. 

Navy,  serving  on  board  the  U.  S.  S. ,  at , ,  did, 

on  or  about  March  31,  1915,  on  board  the  said  ship  ,  inform 

one ,  seaman,  U.  S.  Navy,  stationed  on  the  said  ship 

,  and  then  detailed  as  messman,  in  effect  that  if  he,  the  said 

.  desired  to  continue  in  the  detail  of  messmanj  as  aforesaid. 


INSTRUCTIONS  FOE  COURTS  AND  BOARDS.          121 

he,  the  said ,  could  do  so  by  paying  to  him,  the  said , 

the  sum  of  five  dollars  ($5). 

Specification. — In  that ,  seaman,  U.  S.  Navy,  did, 

on  June  15,  1915,  while  confined  in  a  cell  at  the  naval  prison,  navy 

yard,  ,  ,  with  the  intent  of  then  and  there  poisoning 

and  killing  himself,  deliberately  and  wilfully  swallow  a  small  quan- 
tity of  bichloride  of  mercury,  a  deadly  poison,  and  did  then  and  there 
attempt  deliberately  and  wilfully,  in  the  manner  and  by  the  means 
aforesaid,  to  take  his  own  life  and  kill  himself. 

/Specification. — In  that  First  Lieutenant  ,  U.  S. 

Marine  Corps,  serving  at  the  marine  barracks,  navy  yard,  , 

,  did,  on  or  about  January  20,  1912,  engage  in  a  brawl  in  a 

saloon  on Street  in  the  said  city  of ,  and  was  thereupon 

publicly  arrested  by and ,  police  officers  of  said 

city,  and  confined  in  the  police  station  of  said  city. 

Specification. — In  that ,  chief  quartermaster,  U.  S. 

Navy,  now  serving  on  board  the  U.  S.  S. ,  at  the  naval  station, 

5 ?  having  become  justly  indebted  to ,  pro- 
prietor of  the Hotel, , -,  in  the  sum  of  ninety  dol- 
lars ($90) ,  did,  while  stationed  on  the  United  States  Fish  Commission 

steamer ,  on  or  about  November  1, 1915,  in  consideration  of  such 

indebtedness,  make  and  cause  to  be  delivered  to  the  said 

a  promissory  note,  in  the  words  and .  figures  following,  to  wit : 
"  *  *  *,"  and  the  said  promissory  note  having,  on  December  14, 
1915,  the  date  of  its  maturity,  been  duly  presented  for  payment  at 

the  banking  house  of  and  Company  ^  Washington,  District 

of  Columbia,  by ,  and  payment  thereon  demanded, 

was  protested  by ,  a  notary  public  for  the  District  of 

Columbia,  on  the  ground  that  the  said had  no  account  with 

the  said  banking  house;  and  the  said  ,  well  knowing 

that  he  did  not  have  at  the  time  of  making  said  note,  or  intend  to 

have,  an  account  at  the  said banking  house  to  meet  said  note 

at  maturity,  did,  knowingly  and  wilfully,  by  false  and  fraudulent 
pretense,  cause  the  said  worthless  promissory  note  to  be  accepted  by 

the  said  in  settlement  of  the  indebtedness  hereinbefore 

mentioned. 

Specification. — In  that ,  seaman,  U.  S.  Navy,  serving 

on  board  the  U.  S.  S.  ,  did,  on  or  about  December  16,  1914, 

unlawfully  and  knowingly  deposit,  or  cause  to  be  deposited,  in  a  post 
office  of  the  United  States  at  Washington,  District  of  Columbia,  for 
mailing  and  delivery,  a  certain  envelope,  to  wit :  An  envelope  which 
then  and  there  bore  an  uncanceled  United  States  postage  stamp  and 

the  following  address,  to  wit :  " , ,  -  ,"  and 

which  said  envelope  then  and  there  contained  a  certain  obscene,  lewd, 


122  'INSTRUCTIONS  FOR   COURTS  AND  BOARDS. 

and  lascivious  letter  of  an  indecent  character,  to  wit,  a  letter  in  sub- 
stantially the  words,  letters,  and  figures  as  the  following,  to  wit: 
"  *  *  *,"  which  said  letter  was  then  and  there  a  letter  containing 

lewd,  filthy,  vile,  and  obscene  language  written  by  the  said  

to  the  aforesaid ,  as  he,  the  said ,  then  and  there 

well  knew. 

Specification. — In  that  First  Lieutenant ,  U.  S.  Ma- 
rine Corps,  serving  at  the  marine  barracks,  navy  yard, , , 

having  been  duly  designated  to  perform  the  duties  of  the  treasurer 
of  the  company  fund  of  the  marine  detachment  at  said  barracks, 
and,  as  such,  being  the  custodian  of  certain  moneys,  and  charged 
with  the  duty  of  disbursing  such  moneys  for  the  benefit  of  the  en- 
listed men  at  said  barracks,  from  time  to  time,  as  occasion  might 
require,  and  it  being,  as  he  well  knew,  a  part  of  his  duty  as  treasurer 
of  the  company  fund  aforesaid,  to  report  to  his  commanding  officer 
from  time  to  time  the  condition  of  said  fund,  and  in  making  such 
report  to  state  correctly  and  truly  the  total  amounts  of  all  disburse- 
ments from  and  out  of  said  fund  by  him  as  custodian  thereof  during 
the  period  which  had  elapsed  since  the  date  of  his  last  preceding 
report,  did,  under  date  of  February  18,  1915,  make  and  submit  to 

Major ,  U.  S.  Marine  Corps,  his  commanding  officer,  a 

report  of  the  condition  of  the  said  company  fund  at  the  date  of  said 

report   in  which  he,  the  said  Lieutenant ,  stated  the 

total  disbursements  out  of  said  fund  from  October  15,  1915,  to 
February  15,  1916,  as  amounting  to  the  sum  of  one  hundred  and 
thirty-seven  dollars  and  eighteen  cents  ($137.18),  and  did,  in  and 
by  such  report,  pretend  and  claim,  in  effect,  that  he  was,  on  February 
18,  1916,  entitled  to  a  credit,  as  treasurer  of  said  fund,  for  disburse- 
ments to  the  amount  of  one  hundred  and  thirty-seven  dollars  and 
eighteen  cents  ($137.18),  and  that  the  balance  of  cash  in  his  hands, 
as  such  treasurer,  was  eighty-three  dollars  and  twenty-three  cents 
($83.23),  and  did,  in  and  by  such  report,  further  pretend  and  claim, 

in  effect,  that  he  had,  on  November  16,  1915,  paid  to , 

of  Philadelphia,  Pennsylvania,  from  and  out  of  said  company  fund, 
the  sum  of  seven  dollars  and  fifty  cents  ($7.50)  for  an  implement 
known  as  a  "  feed  cutter,"  purchased  for  the  use  of  the  enlisted  men 

at  said  barracks,  whereas,  in  fact,  he,  the  said  Lieutenant had 

not,  on  the  said  November  16,  1915,  or  at  any  time  prior  to  February 
18,  1916,  paid  to  the  said — ,  from  and  out  of  said  com- 
pany fund,  and  for  or  on  account  of  the  purchase  of  a  "  feed  cutter," 
the  aforesaid  sum  of  seven  dollars  and  fifty  cents  ($7.50),  or  any  part 
thereof,  and  was  not,  in  fact,  entitled  to  a  credit  of  more  than  one 
hundred  and  twenty-nine  dollars  and  sixty-eight  cents  ($129.68)  for 
disbursements  made  by  him  as  treasurer  of  said  fund  prior  to  the 


INSTRUCTIONS   FOR  COURTS  AND  BOARDS.  123 

date  of  said  report,  and  was,  in  fact,  properly  chargeable  with  a 
balance  of  cash  in  his  hands,  as  such  treasurer,  amounting  to  ninety 
dollars  and  seventy-three  cents  ($90.73). 

Charge. — SLEEPING  ON  POST. 

/Specification. — In  that ,  private,  U.  S.  Marine  Corps, 

serving  at  the  marine  barracks,  navy  yard,  ,  ,  having, 

on  August  7,  1915,  been  regularly  posted  as  a  sentinel  on  post  num- 
ber five  at  said  navy  yard,  did,  at  about  10.00  p.  m.  on  said  date, 
sleep  while  on  said  post. 

Charge. — SLEEPING  ON  WATCH. 

/Specification.- — In  that  Ensign  -  — ,  U.  S.  Navy,  serving 
on  board  the  U.  S.  S. ,  then  at  anchor  off , ,  hav- 
ing, at  or  about  4.00  a.  m.  on  June  11,  1915,  relieved  the  officer  of 
the  deck  and  taken  over  the  watch  on  board  said  ship,  did,  between 
the  hours  of  5.00  and  6.00  a.  m.  on  said  date,  sleep  while  on  watch 
as  officer  of  the  deck  of  said  ship. 

Charge. — SODOMY. 

Specification. — In  that ,  boatswain's  mate  second 

class,  and ,  ordinary  seaman,  U.  S.  Navy,  serving  on 

board  the  U.  S.  S.  -  — ,  did,  on  or  about  November  13,  1915,  in 
the  fore  hold  of  said  ship,  together  and  with  each  other,  commit 
sodomy. 

Specification. — In  that — ,  ship's  cook  first  class,  U.  S. 

Navy,  serving  on  board  the  U.  S.  S. ,  did,  on  or  about  March 

3,  1909,  in  the  hold  of  the  said  ship,  in  and  upon  the  body  of  one 
— ,  seaman,  U.  S.  Navy,  attached  to  said  ship,  commit 
F.odomy. 

Charge. — STEALING  PROPERTY  OF  THE  UNITED  STATES  INTENDED  FOR 
THE  NAVAL  SERVICE  THEREOF. 

Specification. — In  that and ,  privates, 

U.  S.  Marine  Corps,  serving  at  the  marine  barracks,  navy  yard, 

, ,  did,  each  and  together,  on  or  about  January  26,  1915, 

feloniously  take,  steal,  and  carry  away  from  the  copper  pile  in  the 
vicinity  of  the  foundry  at  said  navy  yard,  a  pig  of  lead  weighing 
one  hundred  and  ninety-three  pounds,  more  or  less,  of  the  value  of 
about  nine  dollars  and  sixteen  cents  ($9.16),  the  property  of  the 
26450°— 17 9 


124  INSTRUCTIONS   FOR   COURTS   AND  BOARDS. 

United  States,  intended  for  the  naval  service  thereof,  and  did  then 
and  there  appropriate  the  same  to  their  own  use. 

Charge.  —  STRIKING  ANOTHER  PERSON  IN  THE  NAVY. 

Specification.  —  In  that  —r—  —  ,  water  tender,  U.  S.  Navy, 

serving  on  board  the  U.  S.  S.  -  ,  did,  on  or  about  July  10,  1915, 
on  board  said  ship,  with  a  wrench,  unlawfully  and  wilfully  strike 
upon  the  head  —  :  -  —  ,  fireman  second  class,  U.  S.  Navy,  serv- 
ing on  board  said  ship,  thereby  inflicting  on  said  -  's  head  a 
wound  about  one  inch  and  a  half  in  length. 


(See  section  80  and  C.  M.  O.  25,  1914,  3-4.) 

Specification.  —  In  that  -  —  ,  ship's  cook  first  class,  U.  S. 

Navy,  serving  on  board  the  U.  S.  S.  -  ,  did,  on  or  about  May 
21,  1915,  feloniously  take,  steal,  and  carry  away,  from  a  drawer  in 
the  galley  of  said  ship,  a  gold  watch  of  about  sixty  dollars  ($60) 
in  value,  the  property  of  --  ,  ship's  cook  fourth  class,  U.  S. 
Navy,  stationed  on  the  said  ship,  and  did  then  and  there  appropriate 
the  same  to  his  own  use. 

Specification.  —  In  that  -  —  ,  private,  U.  S.  Marine  Corps, 

serving  at  the  marine  barracks,  navy  yard,  -  ,  —  —  ,  did,  on 
August  15,  1915,  feloniously  take,  steal,  and  carry  away  from  the 
locker  at  said  barracks  of  —  --  ,  private,  U.  S.  Marine  Corps, 
serving  at  said  barracks,  the  sum  of  one  dollar  and  eighty-nine  cents 
($1.89),  or  thereabouts,  lawful  money  of  the  United  States  and  the 
property  of  the  said,  —  =  --  ,  and  did  then  and  there  appro- 
priate the  same  to  his  own  use. 

Specification.  —  In  that  --  «—  ,  seaman  second  class,  U.  S. 
Navy,  serving  on  board  the  U.  S.  S.  -  ,  did,  on  or  about  October 
24,  1916,  feloniously  take,  steal,  and  carry  away  from  the  pay  office 
on  board  the  said  ship  a  revolver  of  about  four  dollars  and  fifty 
cents  ($4.50)  in  value,  the  property  of  -  ---  ,  chief  yeoman, 
U.  S.  Navy,  attached  to  said  ship,  and  did  then  and  there  appropriate 
said  revolver  to  his  own  use. 

Specification.  —  In  that  --  ,  private,  U.  S.  Marine  Corps, 
serving  at  the  marine  barracks,  navy  yard,  -  ,  --  ,  did,  on  or 
about  September  11,  1915,  in  the  city  of  -  —  ,  feloniously  take, 
steal,  and  carry  away  a  check  for  the  amount  of  two  hundred  and 
thirty-eight  dollars  ($238),  numbered  two  hundred  and  eight  and 
drawn  upon  the  assistant  treasurer  of  the  United  States,  at  Philadel- 
phia, Pennsylvania,  by  Paymaster  --  ,  U.  S.  Navy,  pay- 
able to  the  order  of  —  --  -  ,  seaman,  U.  S.  Navy,  serving  on 


INSTRUCTIONS   FOB  COURTS  ANEK  BOARDS.  125 

board  the  U.  S.  S. ,  the  said  check  being  the  property  of  the 

said  }  and  at  the  time  aforesaid  in  the  possession  of  a  mail 

orderly  of  the  said  ship  ,  one ,  seaman,  U.  S. 

Navy ;  and  the  said did  then  and  there  appropriate  the 

said  check  to  his  own  use. 

Charge. — THREATENING  TO  ASSAULT  His  SUPERIOR  OFFICER  WHILE  IN 
THE  EXECUTION  OF  THE  DUTIES  OF  His  OFFICE. 

Specification. — In  that ,  seaman,  IT.  S.  Navy,  serving 

on  board  the  U.  S.  S. ,  at  Hampton  Roads,  Virginia,  did,  on 

or  about  April  5,  1915,  when  brought  to  the  mast  by  order  of  the 

officer  of  the  deck,  Lieutenant • — ,  U.  S.  Navy,  to  explain 

his,  the  said 's  absence  from  anchor  watch,  say  to  him,  the  said 

Lieutenant ,  "  I  will  get  even  with  you ;  you  can  court- 
martial  me  if  you  want  to,  and  I'll  fix  you,"  or  words  to  that  effect, 
and  did,  at  the  same  time  and  place,  turn  up  his  sleeves,  clench  his 
fists,  and  assume  a  threatening  attitude  toward  his  superior  officer, 

the  said  Lieutenant — ,  who  was  then  and  there  in  the  execution 

of  the  duties  of  his  office. 

Charge. — THROUGH  INATTENTION  AND  NEGLIGENCE  SUFFERING  A  VES- 
SEL OF  THE  NAVY  TO  BE   STRANDED  AND  HAZARDED. 


Specification. — In  that  Captain  —  — ,  U.  S.  Navy,  being 

in  command  of  the  U.  S.  S. ,  the  said  ship  being,  on  February 

26,  1915,  under  way  in  the  inner  harbor  of  -  — ,  standing 
out  toward  the  breakwater  at  the  entrance  of  said  inner  harbor,  was 
then  and  there  inattentive  and  negligent  in  the  performance  of  his 
duty  as  commanding  officer  of  said  ship  in  that  he  did  then  and  there 
fail  personally  to  superintend  the  conning  of  said  vessel,  in  conse- 
quence of  which  inattention  and  negligence  the  said  ship was 

stranded  on  the  outer  edge  of  the  eastern  breakwater,  near  the  en- 
trance of  said  inner  harbor,  and  was  thereby  hazarded. 

Charge.— THROUGH  NEGLIGENCE  SUFFERING  A  VESSEL  OF  THE  NAVY 

TO  BE  RUN  UPON  A   ROCK  AND  HAZARDED. 

Specification. — In  that  Commander ,  U.  S.  Navy, 

being  in  command  of  the  U.  S.  S. ,  cruising  on  special  service 

in  the Ocean,  off  the  coast  of ,  on  June  5,  1915,  not- 
withstanding the  fact  that  at  about  midnight  June  4,  1915,  the  north- 
east point  of  Island  bore  abeam  and  was  about  six  miles 

distant,  the  said  ship  being  then  under  way  and  making  a  speed  of 
about  ten  knots  per  hour,  and  well  knowing  the  position  of  the  said 
ship  at  the  time  stated,  and  that  the  charts  of  the  locality  were  unre- 


126  INSTRUCTIONS  FOR   COURTS  AND   BOARDS. 

liable  and  the  currents  thereabouts  uncertain,  did,  nevertheless, 
neglect  and  fail  to  exercise  proper  care  and  attention  in  navigating 

said  ship  while  approaching Island,  in  that  he  neglected  and 

failed  to  lay  a  course  that  would  carry  said  ship  clear  of  the  last 
aforesaid  island,  and  to  change  the  course  in  due  time  to  avoid 
disaster,  in  consequence  of  which  neglect  and  failure  on  the  part  of 

the  said  Commander  -  the  said  ship  -          -  was  run 

upon  a  rock  off  the  southwest  coast  of Island,  at  about  4.45 

a.  m.,  June  5,  1915,  and  hazarded. 

Charge. — THROUGH  NEGLIGENCE  SUFFERING  A  VESSEL  OF  THE  NAVY 

TO  BE  RUN  UPON  A   REEF  AND  STRANDED. 

Specification. — In  that  Commander ,  U.  S.  Navy, 

being  in  command  of  the  U.  S.  S.  ,  making  passage  from 

to  ,  on  February  2,  1915,  did,  when  about  forty-five 

miles  to  the  northward  and  eastward  of Bank,  in  the  - 

Sea,  shape,  and  did  subsequently  maintain,  a  course  which  lay  close 
to  a  dangerous  reef  and  cay,  surrounded  by  strong  currents  well 
known  to  exist,  and  did  neglect  and  fail  to  exercise  proper  care  and 
attention  in  navigating  said  ship  while  approaching  said  reef  and 
cay,  in  that  he  neglected  and  failed  to  lay  a  course  which  would 
surely  carry  such  vessel  clear  of  said  reef  and  cay,  or  to  change  course 
in  due  season  to  avert  disaster,  in  consequence  of  which  neglect  and 
failure  on  the  part  of  the  said  Commander  -  — ,  the  said 

ship  -         -  was,  at  about  6.00  p.  m.,  February  2,  1915,  run  upon 

the  north  end  of  -       —  Bank,  in  the Sea,  in  about  latitude 

thirteen  degrees  thirty-four  minutes  north  and  longitude  eighty  de- 
grees five  minutes  west,  and  was  stranded. 

Charge.— THROUGH  NEGLIGENCE  SUFFERING  A  VESSEL  OF  THE  NAVY 

TO  BE  STRANDED. 

Specification. — In  that  Lieutenant  ,  U.   S,   Navy, 

serving  as  executive  officer  on  the  U.  S.  S.  ,  and  being,  on 

August  2,  1915,  temporarily  in  command  of  said  ship,  making  pas- 
sage from to ,  the  weather  being  foggy,  did,  neverthe- 
less, neglect  and  fail  to  exercise  proper  care  and  attention  in  navi- 
gating said  vessel  while  approaching Island,  in  that  he  neg- 
lected and  failed  to  make  allowance  for  current  setting  in  the  direc- 
tion of  the  ship's  course  toward  said  island,  the  said  well 

knowing  that  the  tide  during  the  latter  part  of  the  passage  was 
running  flood,  and  that  said  flood  tide  in  that  vicinity  set  to  the 
north  with  a  velocity  at  times  approaching  two  knots  an  hour,  in 
consequence  of  which  neglect  and  failure  on  the  part  of  said  Lieu- 
. 


INSTRUCTIONS   FOR  COURTS  AND   BOARDS.  127 

tenant ,  the  said  ship was,  at  about  5.25  p.  m.,  on  the 

day  aforesaid,  stranded  in Bay, Island. 

Specification. — In  that  Commander ,  U.  S.  Navy, 

being  in  command  of  the  U.  S.  S. ,  on  June  18,  1915,  said  ship 

being  then  underway  in Bay?  near  Cape , ,  and 

notwithstanding  the  fact  that  said  ship  was,  at  or  about  2.00  p.  m., 
on  the  day  aforesaid,  passing  near  and  in  sight  of  a  buoy  in  said  bay. 

known  as Buoy,  that  the  weather  was  then  thick  and  foggy, 

that  the  said  ship  was  making  a  speed  of  at  least  seven  knots 
per  hour,  and  that,  as  he  well  knew,  on  the  course  said  ship  was 

then  being  steered,  Cape ,  which  was  then  hidden  by  the  fog, 

was  right  ahead  and  but  about  three  and  one-half  miles  distant,  the 

said  Commander did,  nevertheless,  neglect  and  fail  to  reduce 

the  speed  of  the  vessel,  to  establish  a  proper  look  out,  to  keep  himself 
duly  informed  of  the  soundings,  and  to  change  the  course  of  the 
vessel  in  due  time,  in  consequence  of  which  negligence  on  the  part 

of  the  said  Commander ; — ,  as  her  commanding  officer,  said  vessel 

was  stranded  on  said  cape,  at  about  2.30  p.  m.,  on  the  date  aforesaid. 

Charge. — TREATING  His  SUPERIOR  OFFICER  WITH  CONTEMPT. 

Specification. — In  that  Ensign  -  ,  U.  S.  Navy,  serving 

on  board  the  U.  S.  S.  -       — ,  then  lying  in  the  harbor  of , 

— ,  did,  on  July  17,  1915,  while  a  passenger  in  the  dinghy  of 
said  ship,  which  dinghy  was  then  making  passage  from  the  landing 
in  said  harbor  to  said  ship,  assume  control  of  said  dinghy,  notwith- 
standing the  remonstrance  of  Lieutenant — ,  U.  S.  Navy, 

his  superior  officer,  also  serving  on  board  said  ship,  and  a  passenger 
in  said  dinghy ;  and  he,  the  said  -  — ,  did  therein  and  thereby  treat 
with  contempt  his  superior  officer,  the  said . 

Charge. — UNITING  WITH  A  MUTINY. 

Specification. — In  that ,  seaman,  U.  S.  Navy,  a  gen- 
eral court-martial  prisoner  at  the  naval  prison,  navy  yard,  —     — , 

,  did,   on   or  about  October  4,   1911,   conspire  with  

,  fireman  second  class,  U.  S.  Navy,  a  general  court-martial 

prisoner  at  the  said  naval  prison,  to  mutiny  against  the  lawful 
authority  of  and  escape  from  the  lawful  custody  of  -  — , 

private,  U.  S.  Marine  Corps,  stationed  at  the  said  prison  and  on 

duty  as  sentinel  over  the  said  — and  —   — ,  and  to  escape  from 

the  said  naval  prison;  and  in  furtherance  thereof  did,  on  the  date 
aforesaid,  while  in  building  number  five,  at  the  navy  yard  aforesaid, 

and  while  in  the  lawful  custody  of  said  private ,  U.  S. 

Marine  Corps,  unite  with  said in  a  mutiny  against  the 


128  INSTRUCTIONS  FOR  COURTS  AND  BOARDS. 

lawful  authority  of  the  said ,  in  that  he,  the  said , 

did,  then  and  there,  by  force  and  violence,  take  from  the  said  private 

a  revolver,  and  did  assist  the  said to  escape  from  the 

lawful  custody  of  the  said ,  and  did,  then  and  there,  himself 

escape  from  the  lawful  custody  of  the  said . 

Charge. — UNLAWFULLY  SELLING  PROPERTY  OF  THE  UNITED  STATES 
INTENDED  FOR  THE  NAVAL  SERVICE  THEREOF. 

. 

Specification. — In  that ,  seaman,  U.  S.  Navy,  serving 

on  board  the  U.  S.  S.  ,  did,  on  or  about  August  24,  1915, 

while  a  yeoman  third  class,  on  board  said  ship,  sell,  without  proper 
authority,  about  fifteen  yards  of  cap  cloth,  of  the  value  of  about 
thirty  dollars  ($30),  and  about  one  hundred  neckerchiefs,  of  the 
value  of  about  fifty  dollars  ($50),  property  of  the  United  States  in- 
tended for  the  naval  service  thereof,  to : and  

,  civilians  and  visitors  on  board  the  said  ship,  and  to  various 

other  civilians,  names  unknown,  visitors  on  board  said  ship. 

Charge. — USING  A  FORGED  SIGNATURE  FOR  THE  PURPOSE  OF  OBTAIN- 
ING PAYMENT  OF  A  CLAIM  AGAINST  THE  UNITED  STATES. 

Specification. — In  that  Passed  Assistant  Paymaster , 

U.  S.  Navy,,  serving  on  board  the  U.  S.  S.  -  — — ,  having,  on  or  about 
January  15,  1915,  received  through  the  commanding  officer  of  said 
ship  a  certificate  for  the  sum  of  sixty  dollars  ($60),  in  payment  of 
an  indemnity  for  loss  of  clothing,  issued  by  the  Auditor  for  the  Navy 
Department  in  favor  of ,  seaman,  U.  S.  Navy,  sta- 
tioned on  said  ship,  and  he,  the  said ,  well  knowing  that  the 

said was,  at  the  time  of  the  receipt  by  him,  the  said , 

of  said  certificate,  a  deserter  from  the  United  States  naval  service, 
did  nevertheless,  for  the  purpose  of  obtaining  allowance  in  his  ac- 
counts of  the  said  claim  of  sixty  dollars  ($60),  by  the  accounting 
officers  of  the  Treasury,  present,  among  his  official  vouchers,  the 
aforesaid  certificate,  bearing  thereon  what  purported  to  be  the  sig- 
nature of  the  said ,  he,  the  said ,  well  knowing  that  the 

said  signature  was  a  forgery. 

Charge. — USING  ABUSIVE,  OBSCENE,  AND  PROFANE  LANGUAGE  TOWARD 
ANOTHER  PERSON  IN  THE  SERVICE.     (See  section  78.) 

Specification. — In  that ,  private,  U.  S.  Marine  Corps, 

serving  at  the  marine  barracks,  navy  yard, , ,  did,  on 

September  26,  1915,  while  confined  in  the  guard  room  at  said  bar- 


INSTRUCTIONS  FOR  COURTS  AND  BOARDS.          129 

racks,  say  to  Corporal  -  ,  U.  S.  Marine  Corps,  "(Allege 

the  objectionable  language  used}"  or  words  to  that  effect. 

Charge. — USING   ABUSIVE,   OBSCENE,   AND   THREATENING   LANGUAGE 
TOWARD  His  SUPERIOR  OFFICER. 

Specification. — In  that ,  private,  U.  S.  Marine  Corps, 

a  patient  in  the  naval  hospital, ,  — : ,  did,  on  or  about  May 

8,  1915,  while  being  removed  by  order  of  Passed  Assistant  Surgeon 

= ,  U.  S.  Navy,  from  one  of  the  wards  to  another  room 

in  said  hospital,  say  to  the  said  Passed  Assistant  Surgeon  *• 

,  U.  S.  Navy,  "(Allege  the  objectionable  language  used}"  or 

words  to  that  effect. 

Charge. — USING    ABUSIVE    AND    PROFANE    LANGUAGE    TOWARD    His 

SUPERIOR  OFFICER. 

Specification. — In  that ,  seaman,  U.  S.  Navy,  serving 

on  board  the  U.  S.  S.  ,  did,  while  under  sentry's  charge  oh 

board  said  ship,  on  December  19,  1915,  upon  hearing  Lieutenant 
— ,  U.  S.  Navy,  ask  the  sentry  over  prisoners  who  had 

broken  the  light  in  the  brig,  say  to  the  said  Lieutenant ,  U.  S. 

Navy,  who  was  then  and  there  in  the  execution  of  his  office,  "  I 
broke  it;  and  I'd  like  to  break  your  -  -  head,"  or  words 

to  that  effect. 

Charge. — USING  ABUSIVE,   PROFANE,   AND  THREATENING  LANGUAGE 
TOWARD  His  SUPERIOR  OFFICER. 

Specification. — In  that ,  fireman  second  class,  U.  S. 

Navy,  serving  on  board  the  U.  S.  S.  -       — ,  at  the  navy  yard,  -      — , 

— ,  did,  on  February  26,  1915,  while  receiving  treatment  in  the 

sick  bay  of  said  vessel,  say  to  Assistant  Surgeon  -  — ,  U.  S. 

Navy,  "(Allege  the  objectionable  language} ,"  or  words  to  that  effect. 

Charge. — USING  ABUSIVE  LANGUAGE  TOWARD  ANOTHER  PERSON  IN 

THE  SERVICE. 

Specification. — In  that  Lieutenant  ,  U.   S.   Navy, 

serving  on  board  the  U.  S.  S.  ,  did,  on  April  6,  1915,  in  the 

wardroom  of  the  said  ship,  say  to  — ,  mess  attendant 

third  class,  U.  S.  Navy:  "(Allege  the  objectionable  language)"  or 
words  to  that  effect. 

• 


130  INSTRUCTIONS  FOR  COURTS  AND  BOARDS. 

Charge. — USING  ABUSIVE  AND  THREATENING  LANGUAGE  TOWARD  His 

SUPERIOR  OFFICER. 

Specification. — In  that ,  seaman,  U.  S.  Navy,  did,  on 

February  25, 1915,  while  a  boatswain's  mate  second  class,  in  the  U.  S. 

Navy,  and  a  patient  in  the  United  States  naval  hospital  at , 

,  say  to  Assistant  Surgeon ,  U.  S.  Navy :  "  (Al- 
lege the  objectionable  language}"  or  words  to  that  effect. 

Charge. — USING  OBSCENE  AND  ABUSIVE  LANGUAGE  TOWARD  ANOTHER 
PERSON  IN  THE  SERVICE. 

Specification. — In  that ,  private,  U.  S.  Marine  Corps, 

serving  at  the  marine  barracks,  navy  yard,  -       — ,  ,  did,  on 

December  21,  1915,  say  to ,  Sergeant,  U.  S.  Marine 

Corps,  the  sergeant  of  the  guard  at  said  barracks,  "  (Allege  the 
objectionable  language)"  or  words  to  that  effect. 

Charge. — USING  PROVOKING  AND   REPROACHFUL  WORDS,   GESTURES, 
AND  MENACES  TO\VARD  ANOTHER  PERSON  IN  THE  NAVY. 

Specification. — In  that  Captain ,  U.  S.  Marine  Corps, 

while  serving  at  the  U.  S.  Marine  Corps  recruiting  office,  , 

,  as  officer  in  charge  of  the  aforesaid  recruiting  office,  did, 

at  about  4.30  p.  m.  on  March  1,  1915,  in  the  said  recruiting  office 
and  in  the  presence  of  -  — ,  a  civilian,  use  provoking 
and  reproachful  words,  gestures,  and  menaces  toward  Acting  Assist- 
ant Surgeon  — ,  U.  S.  Navy,  serving  at  the  recruiting 

office  aforesaid,  by  shaking  his  fist  in  the  face  of  the  said  , 

and  saying  to  him :  "  That  thing  there  reported  me.  That  sneak  is 
watching  me  and  just  waiting  to  report  me  for  drinking,"  the  words 
"  that  thing  there  "  and  "  that  sneak  "  meaning  and  intending  to  refer 
to  the  said . 

Charge. — USING   THREATENING   LANGUAGE    TOWARD    His    SUPERIOR 

OFFICER. 

Specification. — In  that ,  seaman,  U.  S.  Navy,  serving 

on  board  the  U.  S.  S. ,  at , ,  did,  on  September  17, 

1915,  while  a  general  court-martial  prisoner  under  sentry's  charge 
on  board  said  ship,  use  threatening  language  in  speaking  to  and  about 

— ,  chief  boatswain's  mate,  U.  S.  Navy,  also  stationed  on 

board  the  said  ship,  saying,  "  I  can  lick  you  now ;  if  you  report  me, 
I'll  lick  you  sooner  or  later,"  and  "  If  he  reports  me,  I'll  get  square 
with  him;  I'll  kill  him,"  or  words  to  that  effect. 


INSTRUCTIONS   FOE,   COURTS  AND   BOARDS.  131 

Charge. — VIOLATION  OF  A  LAWFUL  GENERAL  ORDER  ISSUED  BY  THE 
SECRETARY  OF  THE  NAVY. 

Specification. — In  that  Captain ,  U.  S.  Navy,  being 

in  command  of  the  U.  S.  S. ,  having  received  a  lawful  general 

order,  issued  on  February  10,  1915,  by  the  Secretary  of  the  Navy, 
announcing  to  the  Navy  the  death  at  Washington,  District  of  Co- 
lumbia, on  the  morning  of  that  day,  of ,  and  having 

caused  said  order  to  be  publicly  read  to  the  officers  and  crew  of  said, 
ship  on  February  14,  1915,  the  said  Captain  —  -  well  knowing 
that  said  order  required  all  officers  of  the  Navy  and  Marine  Corps  to 
wear  the  badge  of  mourning  for  a  period  of  thirty  days  from  and 
after  the  date  of  its  receipt,  did  wilfully  neglect  and  fail  to  wear 
the  badge  of  mourning  during  a  period  of  thirty  days  immediately 
following  the  date  of  the  publication  by  him  of  said  order  as  afore- 
said. 

Charge. — VIOLATION  OF  A  LAWFUL  REGULATION  ISSUED  BY  THE  SECRE- 
TARY OF  THE  NAVY.     (See  section  66.) 

«  •/,  ^  •  -r-r 

Specification. — In  that  Captain ,  U.  S.  *Navy,  being 

in  command  of  the  U.  S.  S.  -  — ,  having,  on  April  22,  1915,  had 
referred  to  him  by  the  Bureau  of  Navigation,  Navy  Department,  a 
copy  of  a  letter  which  had  been  received  by  said  bureau  from  Cap- 
tain   ,  U.  S.  Navy,  commandant  of  the  naval  station, 

, : — ,  as  follows :  "  *  *  ;"  and  having  been  called  upon 

by  said  bureau  for  an  explanation  of  the  facts  mentioned  in  the  said 
letter  of  the  commandant  of  the  naval  station  aforesaid,  did,  on 
April  27,  1915,  address  a  communication  to  the  commandant  of  the 
said  naval  station  in  the  words  and  figures  following :  "  *  *  * ;" 

in  which  said  letter  he,  the  said  Captain  ,  did  express  an 

opinion  upon  and  impugn  the  motives  of  the  said  Captain . 

Specification. — In  that  Captain ,  U.  S.  Navy,  being 

in  command  of  the  U.  S.  S. ,  did,  on  or  about  October  20,  1915, 

write  a  certain  letter,  with  a  view  to  its  publication,  of  and  concern- 
ing public  work  theretofore  performed  at  the  navy  yard,  , 

,  and  of  and  concerning  officers  of  the  line,  medical  and  pay 

corps  of  the  Navy,  and  did  procure  and  cause  the  said  letter  to  be 

published  on  December  20,  1915,  in  the ,  a  public  newspaper 

published  at  ,  ,  in  the  words  and  figures  as  follows: 

* ;  "  the  said well  knowing  that  said  letter  had  in  view 

the  censure  of  officers  on  duty  in  said  navy  yard,  and  of  officers  of  the 
line,  medical  and  pay  corps  of  the  Navy. 

Specification. — In  that  -  — ,  private,  U.  S,  Marine  Corps, 
serving  at  the  marine  barracks,  navy  yard,  -  — ,  ,  did,  on 


132  INSTRUCTIONS  FOR  COURTS  AND  BOARDS. 

or  about  October  16,  1915,  in , ,  knowingly  and  unlaw- 
fully, and  without  competent  authority,  pledge  to ,  a 

merchant  at  number Street, ,  ,  the  fol- 
lowing articles  of  clothing  lawfully  furnished  by  the  United  States 
to  the  said as  a  part  of  his,  the  said 's,  prescribed  uni- 
forms and  outfit,  for  the  amounts  in  United  States  money  herein- 
after stated,  to  wit:  One  overcoat  for  two  dollars  ($2),  one  flannel 
shirt  for  one  dollar  ($1),  and  one  pair  of  russet  shoes  for  one  dollar 
.and  seventy-five  cents  ($1.75),  which  said  amounts  as  above  set  forth 

he,  the  said ,  did  receive  into  his  possession  and  apply  to  his 

own  use  and  benefit. 

Specification. — In  that  Pay  Clerk ,  U.  S.  Navy,  while 

serving  on  board  the  receiving  ship  at  the  navy  yard, , , 

as  clerk  to  Passed  Assistant  Paymaster ,  U.  S.  Navy, 

then  pay  officer  of  said  receiving  ship,  having,  on  or  about  April 
5,  1916,  become  cognizant  of  the  fact  that  there  was.  a  deficiency  of 
about  four  hundred  dollars  ($400)  in  the  cash  on  hand,  lawful  money 
of  the  United  States,  intended  for  the  naval  service  thereof,  which 

said  sum  of  four  hundred  dollars  ($400)  the  said had,  between 

December  1^  1915,  and  the  date  first  aforesaid,  received  into  his  pos- 
session, custody,  and  control,  as  pay  clerk  as  aforesaid  for  the  said 

Passed  Assistant  Paymaster ,  for  lawful  disbursement,  in  the 

name  of  and  in  behalf  of  the  said  Passed  Assistant  Paymaster , 

and  for  which  said  sum  of  four  hundred  dollars   ($400)  the  said 

-  was  responsible,  he,  the  said ,  did,  on  board  said  ship, 

on  or  about  April  5, 1916,  neglect  and  fail  to  report  to  proper  author- 
ity the  aforesaid  deficiency. 

Charge.— WILFUL  DESTRUCTION  OF  PUBLIC  PROPERTY. 

Specification. — In  that — ,  private,  U.  S.  Marine  Corps, 

serving  at  the  marine  barracks,  navy  yard,  ,  — : ,  having, 

on  or  about  September  25,  1915,  been  placed  in  confinement  in  the 
prison  at  said  barracks,  did  wilfully  break  the  glass  in  the  window  of 
the  cell  in  which  he  was  confined. 

Specification. — In  that ,  seaman,  U.  S.  Navy,  serv- 
ing on  board  the  U.  S.  S.  ,  while  under  sentry's  charge  on 

board  said  ship,  did,  on  December  9,  1915,  wilfully  tear  down  the 
wire  guard  or  shield  around  the  electric  light  in  the  brig  of  said  ship. 

Specification. — In  that ,  seaman,  U.  S.  Navy,  serv- 
ing on  board  the  U.  S.  S.  ,  while  under  sentry's  charge  on 

board  said  ship,  did,  about  noon  on  December  19, 1915,  wilfully  throw 
a  shoe  at  the  electric  light  in  the  brig  of  said  ship,  thereby  breaking 
said  light. 


INSTRUCTIONS  FOR  COURTS  AND  BOARDS.  133 

Charge. — WRONGFULLY  AND  KNOWINGLY  DISPOSING  OF  ARMS  AND 
EQUIPMENT,  THE  PROPERTY  OF  THE  UNITED  STATES,  FURNISHED 
AND  INTENDED  FOR  THE  NAVAL  SERVICE  THEREOF. 

Specification. — In  that  -  — ,  private,  U.  S.  Marine  Corps, 

did,  on  May  1, 1910,  while  serving  at  the  marine  barracks,  navy  yard, 

,  ,  wrongfully  and  knowingly,  at  the  aforesaid  navy 

yard,  by  sale  to  one  -  — .  -  — ,  a  civilian,  dispose  of  one  bayonet 
and  scabbard,  of  the  total  value  of  about  two  dollars  ($2),  property 
of  the  United  States,  intended  for  the  naval  service  thereof,  which 
had  been  furnished  to  him,  the  said ,  for  use  in  the  said  service. 


VII. 


INSTRUCTIONS  CONCERNING  THE  MANNER  OF 
MAKING  UP  RECORDS. 


135 


oafl  M  i  M 


INSTRUCTIONS  CONCERNING  THE  MANNER  OF  MAKING 

UP  RECORDS. 

82.  To  be  typewritten. — Except  under  extraordinary  and  unusual 
conditions  of  service,  records  of  all  courts  and  boards  shall  be  type- 
written. 

83.  How  the  record  is  made  up  and  bound. — The  record  shall  be 
typewritten  on  the  paper  known  as  typewriter  cap    (I  5311(2)), 
8  by  13  inches  in  size.     But  one  side  of  the  paper  shall  be  used, 
leaving  a  margin  of  1  inch  on  each  side  and  2J  inches  at  the  top  of 
each  leaf.     Each   page  shall  be  numbered  in  the  middle  of  the 
margin  at  the  lower  edge.    In  making  up  the  record  it  sometimes 
happens  that  the  pages  are  not  numbered  consecutively,  as,  for  ex- 
ample, where   a  page  is  inserted  and  numbered  73-a,   360  J,   etc. 
Where  this  occurs  a  notation  shall  be  placed  at  the  bottom  of  the 
preceding  page  calling  attention  to  this  fact,  as,  for  example,  "  next 
page  numbered  73-a,"  or  "next  page  numbered  360J,"  etc.     When 
the  conditions  mentioned  in  section  82  render  it  necessary  that  the 
record  be  written  in  longhand,  the  same  size  paper  (8  by  13  inches) 
shall  be  used  and,  as  in  the  case  of  the  typewritten  record,  but  one 
side  of  the  paper  shall  be  used;  the  penmanship  must  be  clear  and 
legible  and  the  record  free  from  erasure  or  interlineation  except  as 
authorized  in  the  following  sections.     Before  the  record  is  forwarded 
to  the  convening  authority  all  pages,  documents,  and  exhibits  must 
be  securely  bound  together  by  at  least  two  through  fasteners  at  the 
top  margin,  the  heads  of  the  fasteners  uppermost ;  and  care  shall  be 
taken  to  see  that  the  fasteners  are  through  each  page,  document,  and 
exhibit.    Should  the  exhibits  be  objects  that  do  not  permit  of  being 
secured  in  the  manner  indicated,  they  shall  be  otherwise  attached  to 
the  record  so  as  to  prevent  the  possibility  of  loss,  or,  if  necessary, 
forwarded  under  separate  cover. 

84.  Order  in  which  documents  are  appended — Numbering  and  mark- 
ing of  pages  and  documents. — In  making  up  records,  each  document 
or  exhibit  shall  be  prefixed  or  appended,  as  may  be  required,  in  the 
precise  order  in  which  it  is  introduced.     All  papers  of  a  similar 
character,  such  as  reports  on  fitness,  communications  regarding  in- 

137 


138  INSTRUCTIONS  FOR  COURTS  AND  BOARDS. 

debtedness,  medical  surveys,  etc.,  shall  be  arranged  together  in 
chronological  order  with  the  earliest  coming  first.  All  documents 
other  than  instruments  of  evidence  shall  be  marked  with  capital 
letters,  as  "A,"  "  B,"  "  C  " ;  instruments  of  evidence  shall  be  marked 
"  Exhibit  No.  1,"  "  Exhibit  No.  2,"  etc.  When  a  single  document  or 
instrument  of  evidence  is  more  than  one  page  in  length,  each  page 
thereof  must  be  marked,  for  example  "A  (1),"  "A  (2),"  etc.,  "Ex- 
hibit No.  1  (1),"  "Exhibit  No.  1  (2),"  etc.  All  such  marks  must 
be  boldly  and  distinctly  made  and  placed  in  the  lower  right-hand 
corner  of  the  page  or  sheet.  All  copies  of  documents  which  may 
be  appended  to  the  record  shall  be  certified  "A  true  copy  "  by  the 
judge  advocate  or  the  recorder. 

85.  Cover  sheets. — A  neat  cover  sheet  shall  be  prefixed  to  the  whole 
record,  following  the  standard  forms  given  under  the  procedure  of 
the  various  courts  and  boards.    At  the  end  of  the  record,  following 
all  appended  documents,  there  shall  be  attached  one  or  more  blank 
sheets  to  provide  for  the  action  of  higher  authorities,  and  to  act  as  a 
protection  to  the  record.    The  date  on  the  front  cover  sheet  shall  be 
the  date  when  the  court  or  board  first  convenes  for  the  case  in 
question. 

86.  Modifications  of  precept. — The  modifications  of  the  precept,  or 
convening  order,  are  those  which  are  signed  and  issued  by  the  con- 
vening authority,  and  they  must  not  be  confused  with  the  personal 
individual  orders  to  officers  to  perform  the  duty  on  the  court  or 
board,  which  are  issued  separately  by  the  Bureau  of  Navigation, 
commandant  of  the  Marine  Corps,  or  convening  authority,  as  the 
case  may  be.    These  modifications  of  the  precept  must  appear  as  a 
part  of  every  record  where  changes  have  been  made  in  the  composi- 
tion of  the  membership. 

87.  In  case  of  absence  of  members. — In  case  of  absence  on  authorized 
leave  or  on  other  duty,  a  copy  of  the  orders  permitting  or  directing 
the  absence  of  such  member  must  be  appended.    In  case  of  unauthor- 
ized absence,  the  statement  of  the  absent  member  with  regard  to 
his  absence  must  be  appended. 

88.  Manner  in  which  corrections   are  to  be   made. — If   corrections 
should  be  necessary  they  shall,  where  made,  be  initialed  by  the  judge 
advocate  or  the  recorder.     An  undue  number  of  corrections,  or  a 
lack  of  neatness  in  making  them,  will  be  sufficient  cause  for  return- 
ing a  record  for  rewriting. 

89.  When  a  witness  corrects  his  testimony. — The  following  instruc- 
tions will  be  observed  whenever  a  witness  corrects  or  amends  his 
testimony: 

(a)  In  every  case  the  original  testimony  must  remain  in  the  record 
as  originally  given. 


INSTRUCTIONS  FOE  COURTS  AND  BOARDS.  139 

(b)  Inclose  in  parentheses,  in  red  ink,  that  portion  of  the  original 
testimony  that  has  been  corrected  or  amended  by  the  witness. 

(c)  In  the  left-hand  margin  of  the  record,  opposite  the  original 
testimony — inclosed  in  parentheses,  as  directed  in  (b) — enter,  in  red 
ink:  a'note  referring  to  the  page  of  the  record  where  the  correction  to 
testimony   is   to   be   found.     For  example,   "  See   correction,   page 
."    Or, 

(d)  Where  corrections  are  short,  inclose  the  original  testimony 
in  parentheses — as  directed  in  (b) — and  enter  the  correction,  in  red 
ink,  above  the  original  testimony  which  it  corrects. 

(e)  Typographical  corrections  in  testimony  will  be  made  in  red 
ink  and  initialed  by  judge  advocate  or  recorder. 

90.  Accused  entitled  to  a  copy  of  the  record  of  a  general  court-mar- 
tial.—See  sections  366-369. 

91.  Index  for  lengthy  cases. — If  a  court-martial  record,  or  that  of 
a  court  of  inquiry,  investigation,  or  board  of  investigation,  exceeds 
20  pages  in  length,  it  shall  be  preceded  by  an  index  showing  upon 
what  page  each  step  of  the  trial  (investigation)  and  of  the  exami- 
nation of  the  several  witnesses,  designating  them  by  name,  may  be 
found ;  also,  in  case  a  witness  corrects  his  testimony  the  index  shall 
show  the  pages  where  such  correction  may  be  found.     There  shall 
also  be  an  index  of  exhibits  offered  and  received  in  evidence,  giving 
a  brief  description  of  the  document,  etc.,  and  at  what  page  of  the 
record  it  was  admitted  in  evidence.    This  index  shall  be  in  the  fol- 
lowing form : 

__      _  R.  S__ 


Seaman,  U.   S.  Navy. 


Trial  by  general  court  martial  at. 


INDEX. 

Organization  of  court page 

Introduction  of  counsel 

Reporter   sworn 

Challenge,  right  accorded 

Members  of  court  and  judge  advocate  sworn 

Arraignment 

Plea 

Adjournments 

Prosecution  rests " 

Defense  rests " 

Finding " 

Sentence    (or  acquittal) ^ . " 

26450°— 17 10 


140 


INSTRUCTIONS  FOR  COURTS   AND  BOARDS. 
TESTIMONY. 


Name  of  witness. 

Direct  and 
redirect. 

Cross  and 
reuross. 

Court. 

Corrected. 

Prosecution: 
A  B.  C  ,  Sea.,  etc  

Defense: 
D            E             Sea    etc 

4-7,11 
94-102  114 

7-11,  12 
102-113,  115 

13-14 

• 
49 

193 

EXHIBITS. 


Exhibit 
No. 

Character  of  — 

Admitted 
in  evi- 
dence. 

1 
2 
3 

4 

Letter  from                       to  accusfid                    

35 
96 
172 
187 

Knife  (forwarded  under  separate 
Finger  prints  taken  from  knife 

The  index  should  precede  the  case,  and  therefore  be  the  first  paper 
beneath  the  cover. 

92.  Reading  of  papers. — Where  the  record  states  that  a  paper,  docu- 
ment, or  testimony  was  read,  it  is  to  be  understood  that  it  was  read 
aloud. 


VIII. 

OUTLINE  OF  THE  RULES  OF  EVIDENCE-THE 

ATTENDANCE  AND  EXAMINATION  OF 

WITNESSES. 


141 


23JUfl  3HT 

; 


OUTLINE  OF  THE  EULES  OF  EVIDENCE— THE  ATTEND- 
ANCE AND  EXAMINATION  OF  WITNESSES. 

93.  Evidence  defined. — Evidence  is  that  which  tends  to  prove  or 
disprove  any  matter  in  question  or  to  influence  the  belief  respecting 
it.     (Bouvier,  701.)     The  word  "evidence,"  in  legal  acceptation,  in- 
cludes all  the  means  by  which  any  alleged  matter  of  fact,  the  truth 
of  which  is  submitted  to  investigation,  is  established  or  disproved. 
(1  Greenl.,  3.) 

94.  Twofold  duty  of  members  of  courts  martial  in  regard  to  evidence. — 
Members  of  courts  martial,  in  their  capacity  as  judges,  must  pass 
upon  the  admissibility  of  evidence ;  and,  as  jurors,  weigh  it. 

95.  Rules  of  evidence  governing  naval  courts  and  boards;  how  deter- 
mined.— No  statute  lays  down  the  rules  of  evidence  to  govern  naval 
courts  and  boards.    The  rules  governing  such  are  made  by  the  Navy 
Department  and  are  published  herein  and  in  court-martial  orders. 
These  rules,  in  so  far  as  the  naval  service  is  concerned,  have  the 
force  of  law  and  are  binding  upon  naval  courts  and  boards. 

If  a  question  of  evidence,  which  can  not  be  determined  by  a  ref- 
erence to  the  above  rules  confronts  a  court,  it  should  then  look  to 
the  rules  of  evidence  applied  by  the  Federal  courts  and  follow  the 
same  if  applicable.  ( See  C.M.  0.51,1914, 7-8.)  If  not,  the  court, 
in  the  absence  of  an  authoritative  rule  on  any  specific  point,  should 
apply,  as  far  as  possible,  the  fundamental  principles  of  evidence  and 
the  dictates  of  reason  and  justice  in  determining  the  particular  point 
at  issue,  and  may  thus  arrive  at  its  conclusion  with  the  assurance 
that  the  chance  of  error  is  reduced  to  a  minimum. 

96.  Forms  of  evidence. — In  addition  to  the  testimony  of  living  wit- 
nesses, evidence  may  include  written  evidence  and  real  evidence. 

Written  evidence  consists  of  documents,  either  under  seal  or  other- 
wise. 

Real  evidence  consists  of  any  objects  or  articles  submitted  in 
open  court  for  examination  by  the  court  and  by  the  witnesses  who 
may  identify  them  or  illustrate  their  application. 

97.  Nature  of  evidence. — Evidence  may  be  either  direct  or  circum- 
stantial. 

Direct  evidence  is  that  kind  which  bears  directly  on  the  issue. 

Circumstantial  evidence  is  that  kind  in  which  the  existence  of 
certain  facts  is  to  be  inferred  from  the  existence  or  nonexistence  of 
other  facts  established  in  evidence. 

143 


144  INSTRUCTIONS  FOR  COURTS  AND  BOARDS. 

98.  Degree  of  evidence. — The  terms  prima  facie  and  conclusive  are 
used  to  refer  to  the  degree  of  evidence. 

Prima  facie  evidence  is  such  evidence  which,  on  first  sight,  creates 
a  belief  not  only  in  the  possibility  of  a  certain  fact,  but  in  its  actual 
existence  beyond  a  reasonable  doubt ;  and  the  effect  of  such  evidence 
is,  in  the  eye  of  the  law,  sufficient  to  establish  such  fact,  if  not  re- 
butted. 

Conclusive  evidence  is  such  evidence  as  to  exclude  the  possibility 
of  any  conclusion  to  the  contrary  of  the  one  it  is  introduced  to  es- 
tablish. 

99.  The  subject  of  evidence — How  divided. — The  subject  of  evidence 
will  be  here  considered  under  the  following  heads : 

I.  Proof  in  general,,  rt-u, 

II.  Admissibility  of  evidence. 

III.  Testimony. 

IV.  Documentary  evidence.        i$yo^ 

V.  Evidence  in  general. 

I.  PROOF  IN  GENERAL. 


100.  Under  the  head  of  "  Proof  in  general,"  it  is  necessary  to  con- 

sider : 

/-.  \   ™n    j.  •         i  i 

(1)  What  is  to  be  proved. 

/Jcrui  <•  £          •     i 

(2)  Degree  of  proof  required. 

/o\     ^  A- 

(3)  Presumptions. 
;   '    T    ,.  .  T      ,. 

(4)  Judicial  notice. 

/KX          A      T          •          -  j     flf 

(5)  Admissions  in  open  court. 

(l)    WHAT  IS  TO  BE  PROVED. 


101.  What  is  to  be  proved.  —  In  a  trial  by  court-martial  the  prosecu- 
tion must  establish   (a)  that  the  act  charged  was  committed;    (£>) 
that  the  accused  committed  it;  and  (c)  that  he  did  so  with  "  criminal 
intent." 

102.  Proof  of  the  commission.  —  The  corpus  delicti,  so  called,  or  the 
fact  that  the  alleged  criminal  act  was  committed  by  some  one,  is  a 
separate  fact  to  be  proved.    Proof  of  a  confession  does  not  prove  the 
corpus  delicti,  but  the  latter  must  be  independently  proved  before 
evidence  of  the  confession  can  be  admitted.    The  rule  with  regard 
to  proof  of  the  corpus  delicti,  apart  from  the  mere  confession  of  the 
accused,  proceeds  from  the  reason  that  the  general  fact  without  which 
there  could  be  no  guilt,  either  in  the  accused  or  in  anyone  else,  must 
be  established  before  anyone  can  be  convicted  of  the  perpetration  of 
the  alleged  criminal  act  which  caused  it  ;  as,  in  cases  of  homocide  the 
death  must  be  shown,  in  theft  it  must  be  proved  that  the  goods 


INSTRUCTIONS   FOR   COURTS  AND  BOARDS.  145 

were  lost  by  the  owner,  and  in  arson  that  the  house  had  been  burned ; 
for  otherwise  the  accused  might  be  convicted  of  murder  when  the 
person  alleged  to  be  murdered  was  alive,  or  of  theft  when  the 
owner  had  not  lost  the  goods,  or  of  arson  when  the  house  was  not 
burned.  But  where  the  general  fact  is  proved  the  foundation  is  laid 
and  it  is  competent  to  show  by  any  legal  and  sufficient  evidence  how 
and  by  whom  the  act  was  committed,  and  that  it  was  done  criminally. 
(See  C.  M.  O.  26,  1910,  10.)  In  many  court-martial  cases  an  omis- 
sion, not  an  act  of  commission,  constitutes  the  offense  charged. 

103.  Proof  of  the  agency  and  identity  of  the  accused. — This,  as  an 
independent  fact,  is  material  in  cases  in  which  the  offense  in  ques- 
tion might  have  been  committed  by  more  than  one  person.     In  the 
case  of  some  of  the  offenses  against  naval  law,  as  desertion,  drunken- 
ness on  duty,  etc.,  the  agency  of  the  accused  is  so  connected  with  the 
act  done  that  proof  of  the  latter  is  also  proof  of  the  former. 

104.  Proof  of  intent. — Proof  of  "  criminal  intent "  does  not  necessi- 
tate showing  that  there  was  an  intention  to  commit  crime.    The  law 
presumes  that  a  man  intends  the  natural  and  probable  consequences 
of  his  voluntary  acts.    Therefore,  an  intention,  on  the  part  of  one 
capable  of  entertaining  intent  and  acting  without  justification,  to  do 
a  prohibited  act,  constitutes  "criminal  intent."     Also,  if  a  person, 
intending  to  commit  one  act,  wrongful  in  itself,  commits  instead  a 
different  criminal  act,  the  law  construes  therefrom  a  "  criminal  in- 
tent.'-    When  a  negligent  act  or  culpable  omission  is  charged,  the 
"  criminal  intent "  consists,  in  the  state  of  mind  which  necessarily 
accompanies  such  act  or  omission. 

The  above  constitutes  a  general  intent  and  is  sufficient  for  all 
crimes  in  which  the  intent  is  not  an  essential  ingredient  of  the  of- 
fense. This  latter  constitutes  a  specific  intent  and  must  be  proved 
with  particularity.  (See  C.  M.  (X  25,  1914,  3;  29,  1914,  9;  41,  1914, 
3;  31,  1915,  14-16;  17,  1916,  8.) 

(2)  DEGREE  OF  PROOF  REQUIRED. 

105.  Proof  beyond  a  reasonable  doubt. — In  a  criminal  case — and  all 
court-martial  procedure  is  of  such  character — the  burden  of  proof 
rests  upon  the  prosecution  to  establish  the  guilt  of  the  accused.    A 
rule  of  criminal  evidence  requires  that  this  be  established  beyond  a 
reasonable  doubt.     This  burden  upon  the  prosecution  gives  rise  to 
what  is  called  a  "  presumption  of  innocence  "  in  favor  of  the  accused, 
a  presumption  which  should  dispel  from  the  minds  of  the  court  any 
suspicion  arising  from  the  fact  that  an   accused  has  been  under 
charges  and  put  the  court  on  notice  that  it  must  reach  its  conclusion 
solely  from  the  legal  evidence  adduced. 


146  INSTRUCTIONS  FOE  COURTS  AND  BOARDS. 

106.  Reasonable  doubt. — By  reasonable  doubt  is  meant  "  an  honest, 
substantial  misgiving  generated  by  insufficiency  of  proof.    It  is  not 
a  captious  doubt,  not  a  doubt  suggested  by  the  ingenuity  of  counsel 
or  jury  and  unwarranted  by  the  testimony,  nor  is  it  a  doubt  born  of 
a  merciful  inclination  to  permit  the  defendant  to  escape  conviction 
nor  prompted  by  sympathy  for  him  or  those  connected  with  him." 
(U.  S.  v.  Newton,  52  Fed.  Rep.,  290.)     "Proof  beyond  reasonable 
doubt  is  not  proof  to  a  mathematical  demonstration.    It  is  not  proof 
beyond  the  possibility  of  a  mistake."    (U.  S.  v.  Youtsey,  91  Fed.  Rep., 
868.)    A  "  moral  certainty  "  of  guilt  persuaded  by  the  proof  calls  for 
conviction.    When  such  has  been  established,  a  court  can  no  more 
properly  acquit  than  could  it  convict  when  there  has  been  an  insuffi- 
ciency of  proof.    (See  C.  M.  O.  19, 1915,  6-7.) 

(3)    PRESUMPTIONS. 

:>oi~L  ,*OI 

107.  Presumptions. — A  presumption  is  a  rule  of  law  annexing  to 

certain  evidential  facts  a  legal  significance.  Such  presumptions  are 
of  two  kinds,  according  to  the  legal  significance  attached,  namely, 
(a)  rebuttdble  presumptions  and  (b]  conclusive  presumptions. 

108.  Kebuttable  presumption  is  an  assumption  made  by  law  that  an 
inference  of  fact  is  prima  facie  correct.     This  presumption  places 
the  burden  of  rebuttal  upon  the  party  against  whom  it  operates.    In 
the  absence  of  evidence  to  the  contrary  the  law  presumes  that : 

(a)  A  person  owns  the  property  which  is  in  his  possession. 

(b)  A  person  between  the  age  of  7  and  14  is  incapable  of  enter- 
taining criminal  intent  and,  therefore,  incapable  of  committing  crime. 

(<?)  A  person  is  sane. 

(d)  A  promissory  note  has  been  issued  on  valuable  consideration. 

(e)  There  is  identity  of  person  from  identity  of  name  (depending 
upon  the  circumstances) . 

(/)  When  an  instrument  is  30  years  old  the  party  whose  signature 
appears  thereon  duly  signed  it. 

(g)   A  person  who  has  not  been  heard  from  in  seven  years  is  dead. 

(h)  A  letter  duly  directed  and  mailed  was  received  in  the  regular 
course  of  the  mail. 

(i)   Official  duty  has  been  regularly  performed. 

(j)  When  a  man  and  woman  have  lived  together  as  husband  and 
wife  and  have  been  commonly  reputed  as  such  they  have  been  properly 
married. 

(k)  A  child  born  of  a  married  woman  during  wedlock  is  legiti- 
mate. 

(I)   An  unlawful  act  was  done  with  unlawful  intent. 

(m)  A  publication  purporting  to  have  been  printed  or  published 
by  public  authority  was  so  printed  or  published. 


INSTRUCTIONS   FOR   COURTS  AND  BOARDS.  147 

(n)  A  publication  purporting  to  contain  reports  of  cases  adjudged 
in  judicial  tribunals  of  the  place  where  published  contains  correct 
reports  of  such  cases. 

109.  Conclusive  presumption  is  an  assumption  made  by  law  that  an 
inference  of  fact  is  conclusively  correct.    It  forbids  of  any  evidence 
being  introduced  to  the  contrary.    The  law,  for  example,  conclusively 
presumes  that  a  child  under  7  years  of  age  is  incompetent  to  com- 
mit crime.    Strictly  speaking,  presumptions  of  this  class  are  not  pre- 
sumptions at  all  but  matters  of  substantive  law.     As  such  they  do 
not  belong  to  the  subject  of  evidence. 

(4)     JUDICIAL   NOTICE. 

110.  Judicial  notice. — By  judicial  notice  is  meant  the  acceptance  by 
courts  of  a  fact  as  being  true  without  proof.     Courts  -should  take 
judicial  notice  of  (a)  notorious  matters  of  general  knowledge  such 
as  every  one  is  presumed  to  know,  and  (b)  matters  of  a  public  char- 
acter so  intimately  connected  with  the  exercise  of  the  judicial  func- 
tion that  courts  are  presumed  to  be  acquainted  with  them.     Under 
(a)  it  has  been  held,  for  example,  that  a  court  should  have  taken 
judicial  notice  of  the  fact  that  Wilkes-Barre,  Pa.,  is  approximately 
400  miles  from  Boston,  Mass.,  a  distance  which  would  require  at 
least  seven  hours  to  cover  (C.  M.  O.  14,  1914,  4) ;  also  that  it  is  cus- 
tomary in  business  transactions  to  include  the  agreement  as  to  inter- 
est in  the  body  of  a  negotiable  instrument  (C.  M.  O.  27,  1913,  7). 
Under  (&)  courts-martial  should  take  judicial  notice,  inter  alia*  of 
the  Constitution,  public  statutes  of  the  United  States  when  pro- 
duced from  authorized  editions  of  books,  proclamations,  the  power 
of  the  President  and  the  executive  departments,  matters  of  public 
history,  the  Navy  Regulations,  general  orders  and  circulars  of  the 
department,  court-martial  orders,  and  authorized  publications  of  the 
department,  such  as  Landing  Force  and  Small  Arms,  Ship  and  Gun 
Drills,  etc.     (See  C.  M.  O.  23,  1911,  3;  49,  1915,  13.)     Matters  of 
which  courts  may  take  judicial  notice  need  neither  be  charged  nor 
proved.     (See  C."M.  O.  4,  1916,  3.) 

(5)     ADMISSIONS  IN  OPEN  COURT. 

111.  Admissions  in  open  court. — An  admission  in  open  court,  when 
such  admission  is  voluntarily  made  by  the  accused  or  by  his  counsel 
in  his  presence  and  with  his  express  or  implied  authority,  is  a  judicial 
confession  of  the  matter  admitted  and  dispenses  with  the  necessity 
of  evidence  to  establish  same.    (See  C.  M.  O.  5, 1917,  6-7.) 

• 


148  INSTRUCTIONS  FOB  COURTS  AND  BOARDS. 

II.  ADMISSIBILITY  OF  EVIDENCE. 

(1)    GENERAL,  RULES. 

112.  Evidence  must  be  relevant. — It  is  a  primary  rule  that  evidence, 
to  be  admissible,  must  be  relevant ;  that  is,  it  must  be  logically  rele- 
vant to  prove  or  disprove  the  issue. 

113.  Best  evidence  required. — It  is  a  rule  of  evidence  that  the  best 
evidence  must  be  introduced  of  which  the  nature  of  the  case  is 
susceptible.     This  rule  does  not  mean  that  circumstantial  evidence 
which  is  relevant  may  not  be  introduced  to  corroborate  direct  evi- 
dence.   Nor  does  it  require  that  evidence  be  cumulative  on  any  point. 
It  refers  rather  to  the  quality  of  proof  and  requires  that  a  fact  be 
established  by  the  most  reliable  evidence  available.    An  attempt  to 
prove  a  fact  by  evidence  which  by  its  very  nature  clearly  indicates 
that  it  is  merely  a  substitute  for  better  evidence  is  open  to  objection. 
Thus,  the  best  evidence  of  the  contents  of  a  letter  would  be  the  letter 
itself,  and  ordinarily  oral  testimony  would  not  be  admissible  on  this 
point.    (See  sec.  190.) 

(2)     HEARSAY   RULE   AND   EXCEPTIONS. 

114.  Hearsay  rule. — Hearsay  is  evidence,  not  of  what  a  witness 
knows  himself,  but  which  rests,  in  part  at  least,  upon  the  credibility 
of  others.     The  term  may  be  used  with  reference  to  that  which 
is  written  as  well  as  that  which  is  spoken.    The  general  rule  is  that 
hearsay  evidence  is  not  admissible. 

115.  Why  hearsay  evidence  is  objectionable. — Hearsay  evidence  is 
objectionable,  first,  because  it  is  not  original  evidence;  second,  the 
real  witness  is  not  testifying  in  court  under  the  sanction  of  an  oath ; 
and,  third,  the  accused  has  no  opportunity  to  be  confronted  with  the 
witness  against  him  or  to  exercise  his  right  of  cross-examination. 

116.  Hearsay  evidence  not  to  be  confused  with  literal  acceptation  of 
word  "  hearsay." — It  does  not  necessarily  follow  that  all  evidence  in 
respect  to  what  a  witness  has  "heard"  is  hearsay.     Such  evidence 
may  constitute  original  facts,  directly  bearing  on  the  issue,  and  as 
such  be  original.     For  example,  when  an  accused  is  charged  with 
having  spoken  certain  words,  the  testimony   of  a   witness  to  the 
effect  that  he  had  heard  the  accused  speak  the  words  in  question  is 
original  and  not  hearsay  evidence.    So  also  a  writing  may  be  "  hear- 
say "  if  offered  to  prove  the  facts  stated  therein,  and  yet  be  admissible 
if  offered  for  another  purpose.    For  example  see  section  200. 

117.  Res  gestae. — Another  form  of  declaration  of  a  third  person 
which  is  admissible  as  original  testimony  is  that  which  forms  a  part 
of  what  is  legally  known  as  the  res  gestae.    By  this  term  is  meant 


INSTRUCTIONS  FOR   COURTS  AND   BOARDS.  149 

"the  circumstances  and  occurrences  attending  and  contemporaneous 
with  the  principal  fact  at  issue,  or  so  nearly  contemporaneous  with 
it  as  to  constitute  a  part  of  the  same  general  transaction,  which  ex- 
plain and  elucidate  such  fact  by  indicating  its  nature  or  motive." 
(Winthrop,  492.)  No  rule  can  be  laid  down  which  will  be  an  exact 
guide  as  to  what  is  and  what  is  not  a  part  of  the  res  gestae.  But 
declarations  offered  in  evidence  as  res  gestae  must  be  shown  to  be 
voluntary  and  spontaneous,  to  spring  out  of  the  principal  fact,  and, 
while  it  is  not  necessary  that  they  be  precisely  coincident  with  the 
main  fact,  they  must  be  shown  to  be  so  closely  related  to  it  as  to  pre- 
clude the  idea  of  deliberate  design.  (15  S.  W.,  642.) 

118.  Exceptions  to  rule  excluding  hearsay. — There  are  certain  excep- 
tions to  the  rule  excluding  hearsay,  of  which  the  principal  ones  likely 
to  be  met  in  the  administration  of  naval  law  are  (1)  dying  declara- 
tions in  homicide  cases,  and  (2)  confessions  and  admissions. 

119.  Dying  declarations  in  cases  of  homicide. — "Under  indictments 
for  murder  and  manslaughter,  the  law  recognizes  an  exception  to  the 
rule  rejecting  hearsay,  by  allowing  the  dying  declarations  of  the 
victim  of  the  crime,  in  regard  to  the  circumstances  which  have  in- 
duced his  present  condition,  and  especially  as  to  the  person  by  whom 
the  violence  was  committed,  to  be  detailed  in  evidence  by  one  who 
has  heard  them.     It  is  necessary,  however,  to  the  competency  of 
testimony  of  this  character — and  it  must  be  proved  as  preliminary 
to  the  proof  of  declaration — that  the  person  whose  words  are  repeated 
by  the  witness  should  have  been  under  a  sense  of  impending  death; 
though  it  is  not  necessary  that  he  should  himself  state  that  he  speaks 
under  this  impression,  provided  the  fact  is  otherwise  shown.    It  is  no 
objection  to  testimony  of  this  character  that  such  declarations  were 
brought  out  in  answer  to  leading  questions,  or  upon  urgent  solicita- 
tions addressed  to  him  by  any  person  or  persons ;  and  if,  instead  of 
speaking,  he  answered  the  questions  by  intelligible  signs,  these  signs 
may  equally  be  testified  to.     It  is  to  be  remarked  that  evidence  of 
dying  declarations,  made,  as  such  usually  are,  under  circumstances 
of  mental  and  physical  depreciation,  and  without  being  subjected  to 
the  ordinary  legal  tests,  is  generally  to  be  received  with  great  cau- 
tion."    (Winthrop,  493-494;  see  on  this  subject  C.  M.  O.  26,  1911,  3; 
see  also  C.  M.  O.  49,  1915,  14.) 

120.  Confessions  and  admissions. — Subject  to  certain  conditions,  con- 
fessions are  admissible  in  evidence.    First,  the  confession  must  be  vol- 
untary, and  anything  that  will  tend  to  show  that  a  confession  was 
extorted  by  threats  or  promises,  or  by  the  use  of  force,  especially  by 
one  in  authority,  will  destroy  its  value  as  evidence.    The  reason  be- 
hind this  rule  is  the  exclusion  of  confessions  which  were  made  under 
such  conditions  that  the  party  may  have  been  influenced  to  make  an 


150  INSTRUCTIONS   FOB   COURTS   AND   BOARDS. 

untrue  one.  Evidence  may  be  introduced  to  establish  the  conditions 
under  which  a  confession  was  made,  and  where  facts  shown  by  pre- 
liminary examination  are  conflicting  the  question  of  whether  the 
confession  was  voluntary  is  for  the  court  to  decide.  The  burden  is 
upon  the  side  wishing  to  introduce  a  confession  to  show  that  it  was 
voluntarily  made.  For  example  of  a  confession  held  to  have  been 
involuntary  see  C.  M.  O.  47,  1910,  6  and  7,  1914,  14;  of  one  held  to 
have  been  voluntary,  see  C.  M.  O.  7,  1914,  13-15.  Secondly,  before 
a  confession  can  be  admitted  in  evidence  in  a  case  to  which  the 
doctrine  of  corpus  delicti  applies,  the  corpus  delicti  must  be  proved. 
(See  sec.  102 ;  see  also  C.  M.  O.  26, 1910,  9-10.)  See  on  this  subject,  in 
addition  to  the  citations  already  quoted  herein,  C.  M.  O.  5, 1913,  8-9 ; 
51, 1914,  3 ;  10, 1915,  4-5 ;  and  3,  1916,  6-7. 

An  admission,  which  is  less  than  a  confession  in  that  it  admits 
merely  something  relevant  to  the  issue  and  does  not  confess  the  main 
fact  sought  to  be  proved,  may  be  received  in  evidence  without  first 
being  shown  to  have  been  voluntarily  made. 

III.  TESTIMONY. 

121.  Under  the  head  of  "  Testimony,"  it  is  necessary  to  consider: 

(1)  The  attendance  of  witnesses. 

(2)  The  competency  of  witnesses. 

(3)  The  examination  of  witnesses. 

(4)  Testimony  by  deposition. 

(1)    THE    ATTENDANCE    OF    WITNESSES. 

122.  Summoning  witnesses. — The  judge  advocate  shall  summon  as 
witnesses   such   persons  whose   testimony   is  necessary  to   a   trial, 
whether  for  the  prosecution  or  the  defense;  but  he  shall  not,  except 
as  hereinafter  provided ,  summon  any  witness  at  the  expense  of  the 
United  States. 

The  written  instrument  that  serves  to  summon  a  witness  who  is 
in  the  naval  or  military  service  is  termed  a  summons;  a  witness  who 
is  not  in  the  service,  a  subpoena.  (For  forms  see  pp.  373-374.) 

123.  Witness  who  is  in  naval  or  military  srvice. — When  it  is  desired 
to  summon  a  witness  who  is  in  the  naval  or  military  service  the  sum- 
mons shall,  whenever  possible,  be  forwarded  through  official  channels. 

When  such  a  witness  is  not  present  at  the  station  where  the  court- 
martial  is  convened  and  his  attendance  would  involve  travel  at  Gov- 
ernment expense  the  judge  advocate  shall  forward  the  summons 
seasonably  to  the  convening  authority,  stating : 

(1)  The  necessity  for  the  testimony  of  the  person  to  be  sum- 
moned ;  that  is,  a  synopsis  of  the  testimony  which  it  is  expected  the 
witness  will  give. 


INSTRUCTIONS  FOR  COURTS  AND  BOARDS.  151 

(2)  Whether  the  testimony  it  is  expected  the  witness  will  give  is, 
in  the  opinion  of  the  judge  advocate,  material  and  necessary  to  the 
ends  of  justice. 

(3)  Whether  the  witness  is  summoned  for  the  prosecution  or  for 
the  defense. 

The  above  statement  should  be  accompanied  by  a  request  that  the 
summons  be  transmitted  to  the  person  named  therein  for  compliance. 

In  urgent  cases,  but  in  none  other,  a  request  for  the  attendance  of 
such  witness  may  be  made  by  telegraph. 

If  the  witness  requested  be  an  officer  under  the  command  of  the 
convening  authority,  the  latter  will,  if  the  circumstances  warrant, 
issue  written  orders  to  such  officer  to  appear  before  the  court  as 
requested  and  direct  the  necessary  travel. 

If  the  witness  requested  by  an  enlisted  man  under  the  command 
of  the  convening  authority,  the  latter  will,  if  the  circumstances  war- 
rant, approve  the  summons  and  forward  the  same,  through  official 
channels,  to  such  enlisted  man.  The  actual  expenses  only  of  enlisted 
men  summoned  as  witnesses  shall  be  paid  and  shall  be  provided  by 
the  pay  officer  upon  order  of  the  commanding  officer  of  the  ship  or 
station  to  which  they  belong. 

If  the  witness  requested  be  not  under  the  command  of  the  conven- 
ing authority,  the  latter  will,  if  the  circumstances  warrant,  transmit 
the  summons,  with  the  information  above  mentioned,  to  the  Secretary 
of  the  Navy. 

A  naval  or  military  witness,  summoned  as  above,  shall  report  to 
the  president  of  the  court  upon  his  arrival  in  obedience  to  the  sum- 
mons, and  it  shall  be  the  duty  of  the  president  to  arrange  for  Gov- 
ernment quarters  and  subsistence,  if  available,  for  such  witness,  if 
an  enlisted  man,  during  his  attendance  at  the  trial. 

124.  Civilian  witness. — As  the  powers  of  a  naval  general  court- 
martial  (or  court  of  inquiry)  in  connection  with  issuing  processes 
to  compel  civilian  witnesses  to  appear  and  testify,  see  sections  11 
and  12  of  the  act  of  February  16,  1909  (35  Stat,  621),  quoted  under 
article  42  of  the  Articles  for  the  Government  of  the  Navy  (p.  41). 

The  judge  advocate  is  authorized  to  subpoena  as  a  witness  any  civil- 
ian who  is  to  be  a  material  witness  as  to  facts,  and  who  is  within  the 
State,  Territory,  or  district  in  which  a  naval  court  sits  and  can  com- 
pel attendance.  For  manner  of  service  see  sec.  129. 

The  judge  advocate  is  not  authorized  to  subpoena  as  a  witness,  at 
the  expense  of  the  United  States,  any  civilian  who  is  not  within  the 
territorial  limits  in  which  the  court  can  compel  attendance,  even 
though  such  witness  be  considered  a  material  one  and  be  willing  to 
attend.  In  such  cases  the  judge  advocate  shall  forward  the  subpoena 
to  the  Secretary  of  the  Navy,  together  with  the  information,  and  in 
the  manner,  required  when  forwarding  a  summons  for  a  naval  wit- 


152  INSTRUCTIONS  FOE  COURTS  AND  BOARDS. 

ness  who  is  not  present  at  the  station  where  the  court-martial  is  con- 
yened  (see  sec.  123).  (For  form  of  subpoena  to  be  used  in  such  cases, 
see  p.  374.) 

See,  in  this  connection,  section  422. 

125.  Witnesses  as  to  character  or  as  experts  not  to  be  summoned  or 
subpoenaed  at  Government  expense.  — The  general  rule  is  that  witnesses 
will  neither  be  summoned  nor  subpoenaed  at  Government  expense 
when  it  does  not  appear  that  any  such  witness  has  personal  knowl- 
edge of  the  facts  at  issue  before  the  court,  but  merely  that  their  tes- 
timony is  desired  either  as  to  character  or  as  experts. 

The  best  evidence  as  to  the  character  of  an  accused  is  his  official 
record,  which  is  always  forwarded  to  the  judge  advocate  for  use  in 
connection  with  the  case. 

Where  a  staff  officer  is  tried  by  general  court-martial  it  is  deemed 
proper  that  at  least  one-third  of  the  court  be  composed  of  officers  of 
the  same  corps  as  the  person  to  be  tried.  (Sec.  221.)  Such  members 
of  the  court  may  themselves  qualify  as  experts  concerning  matters 
pertaining  to  the  duties  of  their  corps  and  testify  accordingly  either 
for  the  prosecution  or  the  defense.  Under  no  circumstances  Avill  the 
department  approve  the  summoning  from  other  stations,  at  Govern- 
ment expense,  of  officers  to  give  expert  testimony,  either  for  the  prose- 
cution or  the  defense,  when  there  are  other  officers  on  duty  at  the  place 
of  the  trial  whose  service  should  render  them  fully  competent  to  give 
such  testimony.  (See  C.  M.  O.  1, 1914,  6-7.) 

126.  Witnesses  for  the  defense. — The  accused  is,  in  general,  entitled 
to  have  all  the  material  witnesses  for  his  defense  summoned,  except 
when  their  testimony  would  be  merely  cumulative  and  evidently  add 
nothing  to  the  strength  of  his  case.    As  far  as  possible  he  should  be 
allowed  a  full  and  free  defense,  as  the  least  denial  to  him  of  any 
proper  facility,  opportunity,  or  latitude  for  it  may  serve  to  defeat 
the  ends  of  justice. 

127.  List  of  witnesses. — The  judge  advocate  shall,  prior  to  the  trial 
if  practicable,  call  upon  the  accused  for  a  list  of  the  witnesses  he 
wishes  summoned  for  the  defense,  and  shall  at  the  time  furnish  him 
with  a  list  of  the  witnesses  who  are  to  appear  against  him.    It  is  to 
be  understood,  however,  that  neither  party  is  precluded  thereby  from 
calling  further  witnesses  whose  attendance  may,  during  the  course  of 
the  trial,  be  found  necessary  to  the  proper  administration  of  justice. 

128.  Court  may  direct  the  summoning  of  witnesses. — While  the  court 
can  not  legally  originate  evidence — that  is,  take  the  initiative  in  pro- 
viding any  part  of  the  proofs — yet,  Avhere,  with  a  view  to  a  more 
thorough  investigation  of  the  case,  it  desires  to  hear  certain  evidence 
not  introduced  by  either  party,  it  may  properly  call  upon  the  judge 
advocate  to  procure  the  same,  if  practicable,  adjourning  for  a  reason- 
able period  to  allow  time  for  the  purpose.     New  testimony  thus 


INSTRUCTIONS  FOB  COURTS  AND  BOARDS.  153 

elicited  must,  of  course,  be  received  subject  to  cross-examination  and 
rebuttal  by  the  party  to  whom  it  is  adverse.     (C.  M.  O.  19,  1915,  3.) 

129.  Service  of  a  subpoena. — The  judge  advocate  shall  prepare  dupli- 
cate subpoenas  for  such  civilian  witnesses  as  he  may  desire  to  calL 
Service  is  made  by  a  personal  delivery  of  the  duplicate  subpoena  to 
the  witness,  and  proof  of  service  by  returning  the  original  to  the 
judge  advocate  properly  indorsed  and  sworn  to  by  the  person  who 
serves  the  subpoena.     (See  p.  377.)     Any  person,  duly  instructed  to 
do  so,  may  serve  the  subpoena,  but  the  service  must  be  personal. 

If  the  desired  witness  lives  near  the  place  where  the  court  is  con- 
vened, and  within  the  territorial  limits  in  which  the  court  can  compel 
attendance,  the  subpoena  may  be  served  by  the  judge  advocate,  pro- 
vost marshal,  or  by  any  other  person  instructed  to  do  so.  If  the  resi- 
dence of  the  witness  is  not  near  at  hand,  but  within  the  territorial 
limits  in  which  the  court  can  compel  attendance,  the  president  of  the 
court  shall  address  a  letter  to  the  commandant  or  senior  officer  pres- 
ent, requesting  that  a  person  be  designated  to  proceed  to  such  place 
named  as  the  desired  witness  may  be  for  the  purpose  of  serving  the 
subpoena,  and  further  requesting  that  the  necessary  transportation 
and  subsistence  be  furnished.  The  proper  pay  officer  should  then  be 
directed  to  furnish  same.  If  the  witness  is  beyond  the  territorial 
limits  within  which  the  court  can  compel  attendance,  the  necessity 
for  personal  service  no  longer  exists.  In  such  case  delivery  may  be 
made  by  such  method  as  may  be  most  practicable. 

130.  When  subpoena  is  disregarded. — In  case  a  civilian,  duly  sub- 
poenaed before  a  general  court-martial  or  court  of  inquiry,  wilfully 
neglects  or  refuses  to  appear  or  qualify  as  a  witness  or  to  testify  or 
produce  documentary  evidence  as  required  by  law,  he  shall  at  once  be 
tendered  or  paid,  in  the  manner  prescribed   in  section   132,  one 
day's   fees  and   mileage   for  the  journey   to  and   from  the   court 
(as  allowed  by  sec.  132),  and  shall  thereupon  be  again  called  upon 
to   comply  with  the  requirements  of  the   law.     For  the   further 
procedure  to  be  taken  in  the  event  that  a  witness  persists  in  refusal 
to  attend,  see  sections  11  and  12  of  the  act  of  February  16,  1909,  35 
Statutes,  622,  quoted  under  article  42  of  the  Articles  for  the  Govern- 
ment of  the  Navy,  and  see  also  pages  381-392.    The  fees  and  mileage 
of  civilian  witnesses  residing  beyond  the  territorial  limits  within 
wrhich  the  court  can  compel  attendance  shall  not  be  paid  in  advance, 
as  such  witnesses  can  not  be  punished  if  they  disregard  a  subpoena. 

131.  Warrant  of  attachment. — In  order  to  compel  the  appearance  of 
a  civilian  witness  in  certain  exceptional  cases,  under  the  circumstances 
hereinafter  set  forth,  it  may  become  desirable  to  resort  to  a  warrant 
of  attachment,  based  upon  the  authority  of  the  sections  of  the  act 
of  February  16, 1909,  referred  to  in  the  preceding  section. 

In  such  cases  the  proper  procedure  for  accomplishing  the  above 
purpose  is  as  follows.  The  president  of  the  court  will  issue  a  warrant 


154  INSTRUCTIONS  FOR  COURTS  AND  BOARDS. 

of  attachment  (p.  377),  directing  and  delivering  it  for  execution 
to  an  officer  designated  for  that  purpose,  generally  the  provost- 
marshal  of  the  court.  He  will  also  deliver  to  this  officer  the  subpoena, 
indorsed  with  affidavit  of  service  (to  be  returned  when  the  warrant  is 
executed),  and  a  certified  copy  of  the  order  appointing  the  court-mar- 
tial. A  warrant,  or  writ  of  attachment,  does  not  run  beyond  the 
State,  Territory,  or  District  in  which  the  court-martial  sits. 

In  executing  such  process  it  is  lawful  to  use  only  such  force  as 
may  be  necessary  to  bring  the  witness  before  the  court.  Whenever 
force  is  actually  required,  the  senior  officer  present,  or  other  officer 
designated  by  the  convening  authority,  nearest  the  witness's  residence 
will  furnish  a  detail  sufficient  to  execute  the  process.  The  use  of  this 
procedure,  however,  should  be  resorted  to  only  when  the  ends  of 
justice  absolutely  demand  it,  when  all  other  means  have  failed,  and 
only  upon  the  authorization  of  the  Secretary  of  the  Navy. 

132.  Fees  of  civilian  witnesses. — Payment  of  the  fees  and  mileage 
of  civilian  witnesses  shall  be  made  by  the  supply  officer  of  any  vessel, 
or,  at  a  yard  or  station  where  there  is  no  receiving  ship,  by  the  dis- 
bursing officer  of  the  yard,  upon  receipt  of  an  order  from  the  com- 
manding officer.  The  order  from  the  commanding  officer  must  be  ac- 
companied with  vouchers,  properly  sworn  to  by  the  witness  and 
certified  by  the  judge  advocate  or  recorder,  or  by  the  deck  court 
officer,  or  by  the  officer  before  whom  the  witness  gave  his  deposition. 
(See  p.  378.) 

This  order  must  also  be  accompanied  by  a  copy  of  the  convening 
order,  certified  to  be  correct  by  the  judge  advocate  or  recorder,  or  by 
the  deck  court  officer,  or  by  the  officer  before  whom  the  witness  gave 
his  deposition. 

The  fees  and  mileage  of  a  civilian  witness  who  refuses  to  obey  a 
subpoena  to  appear  before  a  general  court-martial  or  court  of  inquiry 
(see  sec.  130)  will  be  duly  paid  (or  tendered)  by  the  judge  advocate; 
the  money  for  this  purpose  will  be  supplied  by  such  pay  officer  as 
may  be  designated  upon  the  written  order  of  the  senior  officer 
present,  and  the  judge  advocate  receiving  the  money  for  the  purpose 
named  shall  furnish  the  pay  officer  concerned  with  a  proper  receipt. 

The  certificate  of  the  judge  advocate,  recorder,  deck  court  officer, 
or  officer  before  whom  a  deposition  is  taken  will  be  evidence  of  the 
fact  and  period  of  attendance  and  place  from  which  summoned,  and 
said  certificate  shall  be  made  on  the  voucher. 

Upon  execution  of  the  certificate  the  witness  will  be  paid  upon 
his  discharge  from  attendance,  without  awaiting  performance  of  re- 
turn travel.  The  charges  for  return  journeys  will  be  made  upon  the 
basis  of  the  actual  charges  allowed  for  travel  to  the  court,  or  place 
designated  for  taking  a  deposition.  No  other  items  will  be  allowed. 

Travel  must  be  estimated  by  the  shortest  usually  traveled  route — 
by  established  lines  of  railroad,  stage,  or  steamer — the  time  occupied 


INSTRUCTIONS  FOR  COURTS  AND  BOARDS.          155 

to  be  determined  by  the  official  schedules;  reasonable  allowance  will 
be  made  for  unavoidable  detention. 

If  no  pay  officer  be  present  at  the  place  where  the  court  sits,  the 
accounts,  properly  authenticated  as  directed  above,  shall  be  transmit- 
ted to  the  convening  authority  or  to  the  nearest  naval  station  to 
which  a  pay  officer  is  attached,  with  the  request  that  the  amount  be 
paid  by  check. 

Accounts  of  civilian  witnesses  are  not  transferable. 

Signatures  of  witnesses  when  signed  by  mark  must  be  witnessed. 

The  following  rates  for  civilian  witnesses  are  prescribed  by  law : 

(a)  A  civilian  not  in  Government  employ,  duly  summoned  as  a 
witness  before  a  naval  court  or  board,  or  at  a  place  where  his 
deposition  is  to  be  taken  for  use  before  such  court,  will  receive 
$1.50  a  day  for  each  day  of  actual  attendance  for  such  purpose, 
and  5  cents  a  mile  from  place  of  residence  to  place  of  trial  or  taking 
deposition,  and  return,  except  as  follows: 

(b)  Porto  Rico  and  Cuba,  $1.50  a  day,  15  cents  a  mile  for  neces- 
sary travel  by  stage  or  private  conveyance  and  10  cents  by  railway  or 
steamship  line. 

(c)  Alaska,  east  of  one  hundred  and  forty-first  degree  west  longi- 
tude, $2  a  day  and  10  cents  a  mile ;  west  of  that  degree,  $4  a  day  and 
15  cents  a  mile. 

(d)  Montana,  Wyoming,  Colorado,  New  Mexico,  Arizona,  Utah, 
Idaho,  Washington,  Oregon,  Nevada,  California,  $3  a  day,  15  cents 
a  mile  for  necessary  travel  by  stage  or  private  conveyance,  5  cents  by 
railway  or  steamship  line,  and  $3  a  day  for  the  time  necessarily 
occupied  in  such  travel. 

Civilian  witnesses  not  in  Government  employ,  summoned  to  attend 
courts  or  boards  in  the  Philippine  Islands,  are  entitled  to  the  per  diem 
and  mileage  allowed  witnesses  in  attendance  upon  United  States 
courts — that  is,  $1.50  per  day  for  each  day  in  attendance  on  the 
court  and  5  cents  per  mile  for  the  distance  traveled  to  and  from 
the  court.  If  furnished  with  transportation  by  the  Government, 
42.858  per  cent  of  the  5  cents  per  mile  will  be  deducted  as  cost  of 
transportation  furnished- and  57.142  per  cent  allowed  for  subsistence 
and  other  expenses  of  the  witness. 

An  employee  of  the  civil  government  of  the  Philippine  Islands, 
paid  from  insular  funds,  is  not  in  the  employ  of  the  Government 
for  the  purposes  of  payment  as  a  witness. 

Civilians  in  the  employ  of  the  Government,  when  summoned  as 
witnesses,  shall  be  allowed  their  actual  expenses  for  travel  and  sub- 
sistence while  going  to  and  returning  from  the  court,  and  for  actual 
and  necessary  reasonable  expenses  for  board  and  lodging  while  in 
attendance  thereon.  If  the  court  is  in  session  at  the  place  where  the 
26450°— 17 11 


156  INSTRUCTIONS  FOB   COURTS   AND  BOARDS. 

civilian  witness  in  the  employ  of  the  Government  is  stationed,  he 
shall  receive  no  allowance.     (See  forms,  pp.  378-381.) 

(2)    THE  COMPETENCY  OF  WITNESSES. 

133.  Presumption  of  competency. — A  presumption  always  exists  in 
favor  of  the  competency  of  a  witness  whose  testimony  is  offered,  and 
the  burden  of  proving  the  contrary  rests  on  the  party  objecting. 
In  deciding  upon  the  competency  of  a  witness  the  court  acts  in  the 
capacity  of  a  judge,  while  in  determining  questions  of  credibility  it 
acts  in  the  capacity  of  a  jury. 

134.  Grounds  of  incompetency. — The  question  of  competency  was 
formerly  much  more  important  than  it  is  now.     The  grounds  of 
incompetency  have,  from  time  to  time,  been  reduced  by  statute,  so 
that  at  present  there  are  few  persons  except  idiots,  the  insane,  intoxi- 
cated persons,  very,  young  children,  and  the  spouses  of  accused  per- 
sons, who  by  law  are  not  competent  to  testify.    In  the  case  of  husband 
and  wife,  neither  spouse  is  competent  to  testify  for  or  against  the 
other  before  courts-martial,  excepting  that  in  crimes  involving  per-, 
sonal  injury  committed  by  one  upon  the  other  the  injured  spouse  may 
testify  against  the  other. 

135.  Witnesses   before   naval   courts   generally   competent. — Matters 
that  were  once  regarded  as  affecting  the  competency  of  witnesses 
are  now  treated  as  bearing  only  upon  their  credibility.    As  a  general 
rule,  the  exceptions  to  which  appear  in  the  preceding  section  (134), 
all  witnesses  capable  of  so  doing  are  Entitled  to  testify,  and  it  rests 
with  the  court  in  its  capacity  as  jury  to  decide  how  much  weight  is 
to  be  given  to  their  testimony.     (In  this  connection  see  C.  M.  O.  16, 
1916,  7-9.) 

136.  Challenging  the  competency  of  a  witness. — The  question  of  the 
competency  of  a  witness  should  be  raised  and  decided  before  he 
is  allowed  to  testify;  but  it  may  be  raised  at  any  time  during  the 
trial,  if  the  ground  of  incompetency  were  not  previously  known.    In 
challenging  the  competency  of  any  witness,  such  challenge  must  be 
stated  in  open  court,  and,  together  with  the  decision  of  the  court 
thereon,  must  be  fully  recorded  in  the  proceedings.     (See  C.  M.  O. 
32,  1917,  7.) 

137.  Examination  of  witness  to  whom  exception  is  made. — A  witness 
challenged  as  to  competency  may  be  examined  relative  thereto  on 
oath  administered  on  voir  dire  before 'he  is  regularly  sworn  as  a 
witness. 

In  such  cases  the  oath  administered  shall  be  in  accordance  with 
the  form  prescribed  in  section  289, 


INSTRUCTIONS  FOE  COURTS  AND  BOARDS.   ^       157 

138.  Accused  as  witness. — The  law  provides  that  the  accused  shall 
at  his  own  request,  but  not  otherwise,  be  a  competent  witness,  and 
shall  be  allowed  to  testify  in  his  own  behalf,  and  his  failure  to  make 
such  request  shall  not  create  a  presumption  against  him.    Care  must 
be  taken  by  the  court  that  the  accused  is  not  placed  on  the  stand  , 
unless  he  himself  requests  that  he  be  permitted  to  testify,  otherwise 

a  fatal  error  is  committed.  The  record  must  affirmatively  show  that 
the  statutory  request  was  in  fact  made.  (See  C.  M.  O.  29,  1914, 
14-15.)  Any  comment  at  any  time,  especially  hostile  comment,  on  the 
failure  of  the  accused  to  request  that  he  be  allowed  to  testify  in  his 
own  behalf  is  improper.  (See,  in  this  connection,  sec.  161.) 

139.  Member  or  judge  advocate  as  a  witness. — A  member  or  judge 
advocate  of  the  court  is  a  competent  witness.    If  required  to  testify 
such  witness  should  be  the  first  called,  except  in  the  case  of  the  judge 
advocate  called  as  the  official  custodian  of  a  document  (see  sec.  187). 
Should  the  president  of  the  court  become  a  witness,  the  oath  or 
affirmation  shall  be  administered  to  him  by  the  member  next  in 
rank,  who  shall  preside  during  the  progress  of  his  examination.     If 
the  judge  advocate  becomes  a  witness,  he  shall  record  his  own  testi- 
mony, unless  the  employment  of  a  clerk  or  stenographer  has  been 
authorized.     When  a  member,  the  judge  advocate,  the  accused,  or 
his  counsel  has  completed  his  testimony,  an  entry  shall  be  made  to 
the  effect  that  the  witness  resumed  his  seat  as  member,  judge  ad- 
vocate, accused,  or  counsel.     Should  the  court  be  composed  of  but 
five  members,  one  of  whom  is  called  as  a  witness,  this  will  not  affect 
the  validity  of  the  proceedings,  since,  in  so  testifying,  the  witness 
does  not  cease  to  be  a  member. 

(3)    EXAMINATION    OF    WITNESSES. 

140.  Examined   apart   from   each   other. — Witnesses   are   examined 
apart  from  each  other;  no  witness  is  allowed  to  be  present  during 
the  examination  of  another  who  is  called  before  him.     Before  the 
charges  and  specifications  are  read  to  the  accused,  the  president  of 
the  court  directs  all  witnesses  to  withdraw,  and  not  to  return  until 
they  are  officially  called.     At  the  outset  of  each  day's  proceedings 
the  direction  to  withdraw  shall  be  repeated  to  all  who  are  cited  as 
witnesses  and  may  chance  to  be  present.     Obviously,  these  instruc- 
tions do  not  operate  in  any  case  to  exclude  members,  judge  advocate, 
the  accused,  or  his  counsel  when  it  is  necessary  for  them  to  be  called 
as  witnesses.    When  the  court  has  finished  with  a  witness,  he  shall 
be  directed  to  withdraw,  and  a  minute  shall  be  entered  on  the  record 
to  the  effect  that  the  witness  withdraws  in  order  to  show  that  two 
witnesses  are  not  in  court  at  the  same  time. 

141.  Order  for  examination  of  witnesses. — The  proper  order  for  the 
examination  of  a  witness  is  as  follows :  First,  direct  examination  by 


158  INSTRUCTIONS   FOR   COURTS   AND  BOARDS. 

/ 

the  party  who  calls  him;  second,  cross-examination  by  the  opposite 
party;  third,  redirect  examination;  fourth,  recross-examination. 
The  court  may,  in  the  interest  of  justice,  allow  further  examination 
by  the  parties.  Any  member  of  the  court  may  put  questions  to  the 
witness;  such  questions  are  subject  to  objection  in  the  same  manner 
as  are  questions  by  parties  to  the  trial.  Upon  new  matter  elicited 
by  the  examination  of  the  court,  the  judge  advocate  and  the  accused 
may,  wyithin  the  discretion  of  the  court,  further  examine  the  witness. 

142.  Direct  examination. — This  is  the  original  examination  of  a 
witness  by  the  party  calling  him.     This  examination  and  the  testi- 
mony brought  out  thereby  form  the  basis  for  the  further  examina- 
tion of  a  witness. 

143.  Introductory  questions. — The  direct  examination  of  every  wit- 
ness properly  begins  with  asking  his  name  and  other  introductory 
matters,  such  as,  in  the  case  of  a  naval  witness,  his  office,  rank  or 
rate,  and  station,  whether  he  recognizes  the  accused,  and,  if  so,  as 
whom.    A  witness  for  the  defense  is  asked  these  preliminary  ques- 
tions by  the  judge  advocate  (recorder). 

144.  Witness  must  testify  as  to  his  own  knowledge. — The  general  rule 
is  that  the  testimony  of  a  witness  must  be  confined  to  matters  within 
his  own  knowledge.    Under  the  circumstances  of  the  following  sec- 
tion, however,  the  use  of  a  memorandum  may  be  permitted. 

145.  Use  of  memoranda. — A  witness  may  make  use  of  a  memoran- 
dum :  First,  in  order  to  stimulate  his  memory  so  that  he  may,  with 
his  memory  thus  refreshed,  testify  as  of  his  own  recollection.    Care 
must  be  taken  that  this  privilege  is  not  relied  upon  to  furnish  a 
witness  with  new  facts.    (C.  M.  O.  9, 1916,  8.)    Nor  does  it  authorize 
a  witness  to  read  his  testimony  from  notes  previously  made.     Sec- 
ondly, where  the  memorandum  is  one  made  by  the  witness,  or  under 
his  direction,  at  a  time  when  the  facts  stated  therein  were  fresh  in 
his  mind,  such  memorandum  may  be  received  in  evidence  when  the 
witness  is  no  longer  able  to  testify  to  such  facts  as  of  his  own  recol- 
lection, provided  the  witness  can  testify  that  it  was  correct  when 
made. 

146.  Witnesses  must  state  facts,  not  opinions — Exceptions. — The  testi- 
mony of  witnesses  should  be  confined  to  the  facts  in  a  case.    It  is  the 
exclusive  function  of  the  court  to  draw  the  inferences  which  may  be 
predicated  upon  the  facts  established  by  the  testimony.     (See  Index 
Digest  1914,  20;  C.  M.  O.  49, 1915, 15 ;  17, 1916,  8-9.)    To  this  general 
rule  there  are  three  exceptions,  as  follows : 

(a)  Opinions  arising  from  facts  of  daily  observation  and  experi- 
ence and  forming  the  basis  of  conclusions  of  fact. — Opinions  which 
are  conclusions  drawn  from  numerous  facts  within  the  daily  observa- 
tion and  experience  of  a  witness  are  admissible.  In  this  class  are 

1 


INSTRUCTIONS  FOR  COURTS  AND  BOARDS.  159 

opinions,  based  upon  the  demeanor  or  appearance  of  a  person,  as  to  his 
sanity,  sobriety,  identity,  or  resemblance  to  another;  his  physical  con- 
dition ;  or  his  temperamental  condition,  whether  cool  or  excited,  and 
the  like.  Any  intelligent  witness  may  testify  as  to  his  opinions  of 
this  character,  which  are  merely  conclusions  of  fact  drawn  from  mat- 
ters of  everyday  occurrence. 

(6)  Opinions  of  experts. — In  cases  involving  questions  requiring 
for  their  solution  a  knowledge  of  some  specialty,  the  opinions  of 
qualified  experts  in  such  specialty  may  be  given  in  evidence.  Such 
opinions  are  admissible  for  the  reason  that  they  are  based  upon  expe- 
rience and  knowledge  which  is  beyond  that  of  the  average  member 
of  a  court.  But  the  rule  permitting  the  admission  of  "  expert "  tes- 
timony is  subject  to  certain  limitations.  Before  a  witness  can  testify 
as  an  expert  he  must  qualify  as  such.  (Index  Digest  1914,  20.) 
The  burden  of  so  qualifying  a  witness  rests  upon  the  party  introduc- 
ing him  as  an  expert.  But  the  mere  fact  that  a  person  who  witnessed 
a  certain  act,  which  is  a  violation  of  the  law,  happens  to  be  a  profes- 
sional man,  does  not  constitute  him  an  expert  when  he  testifies  as  to 
his  observation  of  that  act.  (C.  M.  O.  19,  1915,  5.)  In  addition  to 
qualifying  an  expert,  the  necessity  of  his  appearance  must  be  estab- 
lished before  his  opinion  should  be  received.  A  court  may  not  permit 
an  expert  witness  to  be  present  during  the  trial  and  ascertain  the  facts 
directly  from  the  evidence.  (C.  M.  O.  51, 1914,  7-8.)  The  opinion  of 
such  a  witness  may  be  obtained  by  means  of  a  hypothetical  question, 
and,  in  putting  such  question,  facts  may  be  assumed  which  there  is 
evidence  on  either  side  tending  to  establish ;  but  this  rule  requires  that 
the  facts  embraced  in  the  hypotheses  must  be  within  the  confines 
of  the  evidence;  otherwise  the  opinion  of  the  witness  will  be  inad- 
missible. (C.  M.  O.  5,  1913,  7.)  While  an  expert  witness  may  be  al- 
lowed to  assume  facts,  as  above,  to  be  true  in  order  to  base  an  opinion 
thereon,  it  remains  for  the  court,  in  the  last  analysis,  to  determine 
whether  such  facts  are  true.  The  law,  therefore,  allows  an  expert  to 
state  an  opinion  upon  an  assumed  state  of  facts,  but  does  not  permit 
him  to  express  an  opinion  upon  the  specific  question  whether  or  not, 
upon  the  evidence,  the  accused  is  guilty,  for  this  is  the  very  question 
which  the  court  is  sworn  to  determine  upon  its  own  opinion.  (Index 
Digest,  1914,  20.)  On  this  whole  subject  see  C.  M.  O.  7,  1911,  15-16; 
5, 1913,  7-8;  24, 1914,  20-22;  51,  1914,  6-9;  and  19,  1915,  5. 

(c)  Opinions  as  to  handwriting. — When  there  is  a  question  as  to 
the  person  by  whom  any  document  was  written  or  signed,  the  opinion 
of  any  person  acquainted  with  the  handwriting  of  the  supposed 
writer,  to  the  effect  that  it  was  or  was  not  written  or  signed  by  him, 
is  admissible  in  evidence.  A  person  is  deemed  to  be  acquainted  with 
the  handwriting  of  another  person  when  he  has,  at  any  time,  seen 


160  INSTRUCTIONS  FOB  COURTS  AND  BOARDS. 

that  person  write,  or  when  he  has  received  documents  purporting  to 
have  been  written  by  that  person  in  answer  to  documents  written 
by  himself,  or  under  his  authority  and  addressed  to  that  person,  or 
when,  in  the  ordinary  course  of  business,  documents  purporting  to 
have  been  written  by  such  person  have  been  actually  submitted  to  him. 
"  In  any  proceeding  before  a  court  or  judicial  officer  of  the  United 
States  where  the  genuineness  of  the  handwriting  of  any  person  may 
be  involved,  any  admitted  or  proved  handwriting  of  such  person  shall 
be  competent  evidence  as  a  basis  for  comparison  by  witnesses,  or  by 
the  jury,  court,  or  officer  conducting  such  proceeding  to  prove  or  dis- 
prove such  genuineness."  (Act  of  Feb.  26, 1913,  37  Stat.,  683.) 

147.  Leading  questions. — A  question  is  leading  which  instructs  the 
witness  how  to  answer  on  material  points,  or  puts  into  his  mouth 
words  to  be  echoed  back,  or  plainly  suggests  the  answer  which  the 
party  wishes  to  get  from  him,  whether  it  be  put  in  the  alternative 
form  or  not.     (C.  M.  O.  48,  1915,  4.)    Leading  questions  are  not  per- 
mitted on  direct  examination  except:  (a)   Questions  of  identification 
of  persons  or  things  which  have  already  been  described,  (b)  intro- 
ductory questions,  (c)  questions  tending  to  aid  a  defective  memory, 
and  (d)  those  asked  a  witness  who  appears  hostile  to  the  party  call- 
ing him.    Upon  cross-examination  leading  questions  are  permitted. 
(C.  M.  O.  48,  1-915,  4.)     For  examples  of  questions  held  to  be  leading 
see  C.  M.  O.  42,  1909,  7;  and  C.  M.  O.  48,  1915,  3-5  and  the  citations 
given  therein. 

148.  Questions  to  witness  to  be  in  writing. — Questions  to  be  pro- 
pounded to  a  witness  shall  be  reduced  to  waiting,  except  in  cases 
where  the  employment  of  a  stenographer  is  authorized  by  the  con- 
vening authority. 

149.  Objections  to  questions  or  testimony. — Should  objection  be  made 
to  any  proposed  question,  or  to  the  reception  of  any  testimony, 
the  court  shall  proceed  at  once  to  determine  the  same ;  and  the  ques- 
tion or  matter  objected  to,  with  the  decision  of  the  court  thereon,  shall 
be  recorded  in  full  in  the  minutes  of  proceedings. 

150.  Deliberations  to  be  in  closed  court. — Deliberations  upon  any 
question  of  this,  or  of  any  other  character,  shall  be  conducted  in 
closed  court;  when  the  doors  are  opened,  the  accused  will  be  in- 
formed of  the  action  the  court  has  taken.    "Whenever  the  court  is 
closed  for  deliberation,  either  upon  objection  made  or  for  final  con- 
sideration of  the  case,  the  judge  advocate  of  the  court  shall  withdraw 
and  the  expression  "  the  court  was  cleared  "  shall  be  understood  as 
including  such  withdrawal. 

151.  Cross-examination — Latitude    allowed. — The    cross-examination 
of  a  witness  is  less  restricted  than  the  direct,  but  must,  in  general,  be 
confined  to  the  matter  brought  out  in  the  direct  examination  and 


INSTRUCTIONS  FOR  COURTS  AND  BOARDS.  161 

must  not  be  extended  to  collateral  matter,  with  a  view  to  contradict- 
ing the  witness  by  other  evidence  and  thus  discrediting  him.  The 
rule  is,  however,  subject  to  the  qualification  that,  inasmuch  as  the 
object  of  cross-examination  is  to  test  the  credibility  of  the  witness, 
great  latitude  is  allowed ;  leading  questions  are  permitted,  as  well  as 
those  which  are  not  relevant  to  the  subject  where  the  purpose  is  to 
test  the  witness's  powers  of  observation,  the  accuracy  of  his  memory, 
and  the  connection  of  his  statement. 

152.  Reexamination  and  recross-examination. — Where  the  witness,  in 
the  course  of  the  cross-examination,  has  made  statements  not  in  har- 
mony with  those  made  upon  the  direct  examination,  or  statements  of 
a  doubtful  or  equivocal  character,  an  occasion  is^  at  the. discretion  of 
the  court,  presented  for  his  reexamination  by  the  party  who  originally 
called  him,  for  the  purpose  of  eliciting  from  him  an  explanation  of 
such  statements,  and  also,  if  desired,  of  his  motives  in  making  the 
same.    But  this  is,  strictly,  the  full  scope  of  a  reexamination,  which 
can  not  in  general  extend  to  the  bringing  out  of  new  matter,  and 
hence  the  desirableness  of  exhausting  a  witness  as  far  as  possible  on 
the  original  examination.      (Winthrop,  522.)     A  naval  court  may, 
however,  in  the  interest  of  truth  and  justice,  in  its  discretion,  permit 
new  matter  to  be  brought  out  on  reexamination.     Where  a  redirect 
examination  is  allowed,  a  recross-examination  should  also  be  allowed. 

153.  Examination  by  the  court. — A  member  may  put  questions,  but, 
since  members  must  be  impartial  and  without  prejudice,  their  ques- 
tions should  in  general  be  for  the  purpose  of  making  clear  the  mean- 
ing of  testimony  already  given.    (See  C.  M.  O.  19, 1915 ;  3-5.) 

A  question  by  a  member  may  be  put  directly  to  a  witness  with- 
out submitting  it  first  to  the  court;  if,  however,  it  is  objected  to 
and  ruled  out,  it  must  be  recorded  as  "  by  a  member."  If  received,  it 
is  recorded  as  "by  the  court." 

154.  Further  examination  of  witness. — If  a  witness  is  examined  by 
the  court,  an  opportunity  should  be  afforded  the  judge  advocate  and 
the  accused,  respectively,  to  reexamine  and  recross-examine  the  wit- 
ness upon  new  matter  brought  out  by  the  court's  examination ;  when 
the  witness  is  excused  the  record  will  be  made  to  state  affirmatively 
that  neither  the  court,  the  judge  advocate,  nor  the  accused  (counsel) 
had  any  further  questions  to  ask  the  witness.     If  any  step  in  the 
examination  of  a  witness  is  omitted  by  reason  of  the  fact  that  the 
party  whose  turn  it  is  to  examine  does  not  desire  to  ask  any  questions, 
the  record  must,  by  a  suitable  entry,  show  that  such  opportunity  was 
afforded ;  thus,  "  The  accused  did  not  desire  to  cross-examine,  etc." 

155.  Questions  witness  may  decline  to  answer. — A  witness  may  right- 
fully decline  to  answer  certain  questions,  and  in  such  cases  should 


162  INSTRUCTIONS  FOR  COURTS  AND  BOARDS. 

be  sustained  by  the  court.     These  questions  are  known  as  "privi- 
leged/*   The  principal  cases  of  privilege  are : 

156.  State  secrets. — This  class  of  privilege  covers  all  the  depart- 
ments of  the  Government,  and  its  immunity  rests  upon  the  belief 
that  the  public  interests  would  suffer  by  a  disclosure  of  state  affairs. 
The  scope  of  this  class  is  very  extended,  and  the  question  of  the 
inclusion  of  a  given  matter  therein  is  decided  by  a  consideration  of 
the  requirements  of  public  policy  with  reference  to  such  matter. 
(Winthrop,  499.) 

157.  Attorney  and  client. — This  class  of  privilege  includes  all  con- 
fidential communications  between  a  client  and  his  attorney,  made 
during  the  existence  of  the  relationship  and  having  reference  thereto, 
but  does  not  include  matters  coming  to  the  knowledge  of  the  attorney 
independently  of  his  employment.     The  privilege  extends  to  the 
clerks,  stenographers,  interpreters,  and  other  employees  whose  serv- 
ices are  necessary  to  the  counsel  in  the  transaction  of  his  business. 
(Winthrop,  501.)     And  this  privilege,  of  course,  holds  in  the  case 
where  counsel  is  in  the  naval  service  as  well  as  in  the  case  of  a 
civilian  attorney.    This  privilege  is  for  the  protection  of  the  client 
and  can  not  be  waived  by  the  attorney.     (See,  on  this  general  sub- 
ject, C.  M.  O.  5, 1917,  5-6.) 

158.  Husband  and  wife. — This  class  covers  all  communications  of  a 
confidential  nature  made  during  the  continuance  of  marriage. 

159.  Criminating   questions. — All   questions  whose   answers  would 
expose  the  witness  to  a  criminal  prosecution  or  penal  action  come 
under  the  head  of  criminating  questions.     A  witness  may  properly 
decline  to  answer  a  criminating  question.    If  the  declination  be  sus- 
tained by  the  court,  no  inference  therefrom  or  comment  thereon  is 
permissible.     (See  C.  M.  O.  29,  1914,  11  and  citations  given  therein.) 

160.  Degrading  questions. — A  witness  may  also  properly  decline  to 
answer  where  the  inquiry  is  as  to  collateral,  irrelevant,  or  immaterial 
matters  on  the  ground  that  his  answer  will  have  the  direct  effect  of 
degrading  or  disgracing  him,  as,  for  example,  in  a  case  where  his 
answer  could  have  no  effect  upon  the  case  except  to  impair  his  credi- 
bility.    He  may,  however,  be  compelled  to  answer  as  to  a  matter 
which  is  material  to  the  issue  or  trial,  notwithstanding  the  fact  that 
his  answer  may  tend  to  disgrace  him  or  bring  him  into  disrepute, 
unless  his  answer  would  also  tend  to  incriminate  him  in  addition  to 
degrading  him.     (See  C.  M.  O.  29,  1914,  11  and  12.) 

161.  Testimony  of  the  accused  not  excepted  from  ordinary  rules. — 
When  an  accused  elects  to  take  the  stand  in  his  own  behalf,  he  is 
considered  as  having  waived  his  privilege  as  to  the  subject  matter  of 
his  testimony  in  chief  and  must  submit  to  a  full  cross-examination 
thereon,  notwithstanding  the  fact  that  his  answers  may  tend  to  in- 
criminate or  disgrace  him.    As  stated  by  the  Supreme  Court  in  Fitz- 


INSTRUCTIONS  FOR  COURTS  AND  BOARDS.  163 

patrick  v.  United  States  (178  U.  S.,  315),  "Where  an  accused  party 
waives  his  constitutional  privilege  of  silence,  takes  the  stand  in  his 
own  behalf,  and  makes  his  own  statements,  it  is  clear  that  the  prose- 
cution has  a  right  to  cross-examine  him  upon  such  a  statement  with 
the  same,  latitude  as  would  be  exercised  in  the  case  of  an  ordinary 
witness  as  to  the  circumstances  connecting  him  with  the  alleged 
crime.  While  no  inference  of  guilt  can  be  drawn  from  his  refusal  to 
avail  himself  of  the  privilege  of  testifying,  he  has  no  right  to  set 
forth  to  the  jury  all  the  facts  which  tend  in  his  favor  without  laying 
himself  open  to  a  cross-examination  upon  those  facts."  (See  C.  M.  O. 
29,  1914,  14-15.) 

162.  Request  that  witness  be  required  to  answer. — The  party  examin- 
ing the  witness  may  request  the  court  to  require  the  witness  to  answer 
on  the  ground  that  the  answer  would  not  tend  to  incriminate  him.  or 
would  not  tend  to  degrade  him,  or,  admitting  that  the  ansAver  would  de- 
grade him,  that  the  matter  under  inquiry  is  material  to  the  issue  on 
trial  and  must  be  answered,  notwithstanding  the  element  of  deg- 
radation of  the  witness.    If  the  court  sustains  the  request  of  the  party 
examining  the  witness,  the  witness  must  answer,  or  be  in  contempt.    If 
the  privilege  claimed  be  on  the  ground  of  self-incrimination,  and  the 
answer,  when  made  under  compulsion,  does  tend  to  incriminate  the 
witness,  the  accused  can  not  object  or  require  the  court  to  exclude  the 
evidence  on  that  ground;  but  such  answer  can  not  subsequently  be 
put  in  evidence  in  a  criminal  proceeding  against  the  witness.    If  the 
privilege  claimed  be  on  the  ground  of  self-degradation,  and  the 
answer,  when  made  under  compulsion,  does  tend  to  degrade  the  wit- 
ness, the  only  result  is  that  it  maj  affect  the  credibility  of  the  wit- 
ness.   (See  C.  M.  O.  29, 1914, 13-14.) 

163.  Privilege  is  a  personal  one. — The  privilege   of   declining  to 
answer  on  ground  of  incrimination  or  self  degradation  is  a  purely 
personal  one  and  can  be  claimed  only  by  the  witness  himself,  and 
not  by  the  accused,  his  counsel,  or  any  other  person.    In  proper  cases, 
however,  the  court  may,  in  its  discretion,  inform  the  witness  of  his 
rights.    The  accused  can  not  object  to  such  testimony,  and  the  wit- 
ness may  waive  his  privilege  and  testify  in  spite  of  any  objection 
coming  from  the  accused,  his  counsel,  or  any  other  person.     If  the 
witness  claims  this  privilege,  but  is  nevertheless  required  to  testify, 
it  is  a  matter  exclusively  between  the  court  and  the  witness.    Under 
such  circumstances  the  accused  is  in  no  worse  a  predicament  than  if 
the  witness  had  come  forward  voluntarily  to  testify  or  had  failed 
to  avail  himself  of  his  privilege.     (See  C.  M.  O.  29,  1914,  12-13.) 

164.  How  privilege  is  claimed. — When  a  witness  wishes  to  be  excused 
from  answering  a  question  he  should  state  in  specific  terms  on  what 
ground  a  privilege  is  claimed.    It  is  for  the  court  to  decide  whether 
or  not  the  privilege  should  be  allowed.     The  witness  should  not  be 


164  INSTRUCTIONS  FOR  COURTS  AND  BOARDS. 

required  to  detail  wherein  his  answer  would  incriminate  or  disgrace, 
but  should  make  clear  upon  what  ground  he  is  basing  a  refusal  to 
answer.  Both  the  question  and  the  ground  of  refusal  should  appear 
in  the  record.  (See  C.  M.  O.  29, 1914,  12.) 

165.  Rule  for  deciding  whether  witness  should  answer  the  question 
when  privilege  on  the  ground  of  self-incrimination  is  claimed. — To  en- 
title a  witness  to  the  privilege  of  silence,  the  court  must  see  from 
the  circumstances  of  the  case  and  the  nature  of  the  evidence  which 
the  witness  is  called  to  give  that  there  is  reasonable  ground  to 
apprehend  danger  to  the  witness  from  his  being  compelled  to  answer. 
The  danger  to  be  apprehended  must  be  real  and  appreciable,  with 
reference  to  the  ordinary  operation  of  the  law  in  the  ordinary  course 
of  things.     It  must  not  be  a  danger  of  an  imaginary  and  unsubstan- 
tial character  having  reference  to  some  barely  possible  contingency 
so  improbable  that  no  reasonable  man  would  suffer  it  to  influence 
his  conduct.     When  reasonable  apprehension  of   danger   appears, 
however,  then,  inasmuch  as  the  witness  alone  knows  the  nature  of 
the  answer  he  would  give,  he  alone  must  decide  whether  it  would 
criminate  him,  and  after  it  has  been  made  to  appear  to  the  court  that 
a  reasonable  apprehension  of  danger  really  exists,  it  should  not  re- 
quire evidence  of  the  nature  of  the  witness's  ansAver  further  than 
his  own  statement  that  his  answer  might  tend  to  criminate  him.     (See 
C.  M.  O.  29,  1914,  14.) 

166.  Impeachment  of  a  witness. — The  testimony  of  a  witness  may  be 
impeached:  (1)  By  disproving  the  facts  testified  to  by  him;  (2)  by 
proof  of  contradictory  statements  previously  made  by  him  as  to 
matters  relevant  to  his  testimony  and  to  the  case;  and  (3)  by  attack- 
ing the  witness's  general  credibility. 

167.  Impeachment  by  proof  of  contradictory  statements. — Evidence 
looking  toward  the  impeachment  of  a  witness  by  proof  of  contradic- 
tory statements  previously  made  by  him  is  competent  only  in  respect 
to  matters  that  are  relevant  and  material  to  the  charge.    Before  con- 
tradictory statements  of  a  witness  can  be  proved  against  him,  his 
attention  must  be  called  with  as  much  certainty  as  possible  to  the 
time,  place,  attending  circumstances,  and  person  to  whom  the- state- 
ments have  been  made.    If  such  statements  were  made  in  writing,  the 
same  should  be  shown  the  witness  for  identification.    It  is  not  suffi- 
cient to  ask  a  witness  in  general  whether  he  did  not  at  some  time 
make  a  different  statement,  but,  in  order  to  prepare  the  way  for 
impeaching  evidence,  it  is  necessary,  first,  to  ask  the  witness  upon 
cross-examination  whether  he  did  not,  on  a  specified  occasion,  make 
a  diverse  statement  (specifying  it)  to  a  person  named.     When  the 
impeachment  is  to  be  made  by  the  testimony  of  other  witnesses  care 
must  be  taken  to  lay  the  groundwork,  as  indicated  above,  for  subse- 
quent impeachment  while  the  witness  to  be  impeached  is  on  the  stand. 


INSTRUCTIONS  FOR  COURTS  AND  BOARDS.  165 

Otherwise  it  would  be  necessary  tor  recall  such  witness  for  this  pur- 
pose before  impeaching  testimony  could  be  admitted.  But,  when 
the  previous  statement  was  made  under  oath  and  recorded  before  an 
official  lawfully  empowered  to  administer  an  oath,  it  is  not  necessary 
to  lay  the  above  foundation  for  impeachment. 

168.  Attacking  general  credibility  of  a  witness. — The  general  credi- 
bility of  a  witness  may  be  attacked  in  cross-examination,  or  by  evi- 
dence tending  to  show  his  general  bad  reputation  as  to  veracity. 
The  fact  that  a  witness  has  been  convicted  of  a  crime  involving  moral 
turpitude  may  also  be  brought  out  as  bearing  on  his  credibility.     (In 
this  connection  see  C.  M.  0.  16, 1916,  7-9.)    The  state  of  the  feelings 
of  the  witness  and  his  relationship  to  the  parties  may  always  be 
proved  for  the  consideration  of  the  court.    In  all  cases  it  is  for  the 
court  to  determine  the  weight  to  be  given  a  particular  witness.     (See 
C.  M.  O.  9, 1916,  6-7.) 

169.  A  party  may  not  impeach  his  own  witness. — Exceptions. — The 
general  rule  is  that  a  party  is  not  permitted  to  impeach  the  credibility 
of  his  own  witness,  but  this  does  not  mean  that  he  can  not  introduce 
other  testimony  as  to  a  particular  fact  which  is  directly  contra- 
dictory to  the  testimony  of  such  witness.    Exceptions  to  the  general 
rule  are:   (1)  When  the  witness  appears  to  be  hostile  to  the  party 
that  calls  him;  (2)  when  a  party  is  under  the  necessity  of  calling  a 
particular  person  as  a  witness:  (3)  when  the  party  that  calls  a  witness 
is  unduly  surprised  at  the  evidence  elicited. 

170.  Authority  of  naval  court  to  punish  contempts. — See  article  42  of 
the  Articles  for  the  Government  of  the  Navy  and  sections  11  and 
12  of  the  act  of  February  16,  1909,  quoted  thereunder.    See  also  note 
on  page  394  in  regard  to  contempt  before  a  summary  court-martial 
or  deck  court. 

171.  The  president  may  caution  a  witness  as  to  his  language  or  be- 
havior.— This  caution  may  be  given  at  the  request  of  a  member,  the 
judge  advocate,  any  party  to  the  trial,  or  on  the  president's  own 
initiative. 

172.  Procedure  when  witness  is  charged  with  contempt. — When  a  wit- 
ness is  charged  with  contempt  he  should  be  given  opportunity  to 
reply.     If  the  reply  is  satisfactory,  the  proceedings  for  contempt 
may  be  ended.     A  witness  can  not,  however,  purge  himself  of  con- 
tempt by  insisting  that  his  language  or  behavior  was  proper.    The 
testimony  of  a  witness  who  has  been  adjudged  guilty  of  contempt 
may  be  continued. 

173.  Place  of  confinement  of  a  witness  adjudged  guilty  of  contempt. — 
The  place  of  confinement  for  a  witness  in  the  naval  service  who  is 
adjudged  guilty  of  contempt  and  is  sentenced  to  confinement  should 
be  left  to  the  commanding  officer  of  the  person  concerned.    A  com- 
munication, signed  by  the  president,  to  such  commanding  officer 
should  state  the  offense,  the  sentence,  and  the  authority  therefor. 


166  INSTRUCTIONS  FOR  COURTS  AND  BOARDS. 

174.  In  case  a  civilian  witness  is  adjudged  guilty  of  contempt,  the 
district  attorney  should  be  informed. — If  possible,  before  a  civilian  wit- 
ness in  contempt  before  a  general  court-martial  or  court  of  inquiry 
is  permitted  to  withdraw,  the  federal  district  attorney  should  be 
communicated  with  in  order  that  the  witness  may  be  apprehended 
expeditiously.     The  law  does  not  give  a  naval  court  authority  to 
restrain  such  witness  of  his  liberty  as  in  the  case  of  naval  witnesses. 
Even  though  the  witness  has  departed  from  the  jurisdiction  within 
which  the  court-martial  sits,  the  district  attorney  may  cause  his 
arrest  in  another  jurisdiction,  as  the  offense  is  one  against  the  United 
States  for  which  provision  is  made  in  section  1014,  Revised  Statutes. 
(See  sec.  130.) 

175.  Verification  of  testimony. — The  recorded  testimony  of  a  witness 
shall  be  read  to  or  by  him  in  order  that  he  may  verify,  correct,  or 
amend  it.     If  desirable,  the  judge  advocate  may  request  the  court 
to  permit  the  witness  to  report  on  a  subsequent  day  in  order  to  cor- 
rect or  verify  his  testimony.    If  the  correction  or  amendment  is  ma- 
terial, the  witness  may  be  further  examined  on  the  subject  matter 
affected  by  the  correction.    (See  C.  M.  O.  3, 1917,  5.) 

176.  Manner  of  correcting  testimony. — When  a  witness  reappears  to 
correct  his  testimony  the  correction,  amendment,  or  verification  may 
be  accomplished  in  either  of  two  ways:  First,  the  witness  may  be 
present  during  the  reading  of  so  much  of  the  record  as  contains  his 
testimony,  and,  at  the  conclusion  of  such  reading,  make  necessary 
changes  or  verify  it;  or,  second,  he  may  be  furnished  with  so  much 

'  of  the  record,  or  a  copy  thereof,  as  contains  his  testimony,  to  be  read 
over  by  him  out  of  court,  after  which  he  is  called  before  the  court  to 
correct,  amend,  or  verify  it.  The  judge  advocate  may  correct  obvious 
clerical  errors  out  of  .court  before  the  witness  is  called  upon  to  verify 
his  testimony.  (For  manner  of  recording  corrections,  see  sec.  89.) 

177.  Witness  may  be  warned  not  to  converse  upon  matters  pertaining 
to  the  trial. — The  object  of  the  examination  of  witnesses,  and  the 
object  of  all  the  various  rules  of  evidence  covering  such  examination, 
is  to  present  to  the  court  testimony,  given  under  oath,  covering  all 
pertinent  facts  relating  to  the  case  which  are  within  the  personal 
knowledge  of  each  witness.    When  the  court  has  all  of  the  testimony 
of  the  various  witnesses  concerning  matters  in  their  own  personal 
knowledge  before  it,  it  can  then,  taking  all  the  evidence  into  con- 
sideration, arrive  at  its  finding. 

The  reason  that  no  witness  is  permitted  in  court  during  the  exami- 
nation of  another  witness  is  in  order  to  prevent  either  the  deliberate 
or  unconscious  coloring  of  the  testimony  of  any  witness,  inasmuch  as 
it  is  considered  essential  to  the  ends  of  justice  that  each  witness 
testify  truthfully  and  in  accordance  with  his  own  recollection  of 
events.  For  exactly  these  same  reasons  it  is  highly  undesirable  and  im- 
proper for  witnesses  to  an  occurrence  which  may  probably  be  the  sub- 


INSTRUCTIONS  FOR  COURTS  AND   BOARDS.  167 

ject  of  judicial  investigation  to  converse  with  each  other  concerning 
the  testimony  which  they  would  give  should  they  be  called  as  witnesses, 
or,  having  testified,  to  disclose  to  persons  not  present  the  testimony 
which  they  gave,  or  to  converse  with  anybody,  including  those 
present  in  the  court  room,  concerning  the  details  of  the  testimony 
given  by  them.  This  prohibition,  of  course,  is  not  intended  to  pre- 
vent legitimate  conversations  between  any  persons  officially  inter- 
ested in  the  case  and  bona  fide  witnesses,  but  it  is  intended  to  prevent 
any  conversations  with  any  persons  whatever  which  will  influence  any 
testimony,  directly  or  indirectly,  which  is  to  be  given  before  the 
court. 

The  following  rules  are  therefore  laid  down  in  regard  to  warning 
witnesses  to  refrain  from  discussing  matters  pertaining  to  the  trial : 

(a)  It  is  competent  for  the  judge  advocate  or  the  counsel  for  the 
accused  to  warn  prospective  witnesses  against  conversations  as  to 
the  details  of  the  case  with  any  person  other  than  a  party  to  the  trial. 

(b)  The  court  may,  on  its  own  motion,  or  upon  request  of  any 
party  to  the  trial,  especially  direct  any  witness  who  has  testified  in 
a  case  to  refrain  from  disclosing,  either  directly  or  indirectly,  any 
part  of  the  testimony  he  has  given,  and  from  conversing  with  any 
person  whatsoever  concerning  the  details  of  his  testimony. 

(c)  The  court  may  also  call  all  the  witnesses  in  the  case  and  in- 
struct them  not  to  converse  with  any  person,  other  than  the  parties 
to  the  trial,  concerning  any  feature  of  the  case  whatsoever,  and  not 
to  allow  any  witness  who  has  testified  to  communicate  in  any  manner 
anything  to  them  concerning  testimony  given  on  the  stand. 

(d)  In  exceptional  cases  the  court  may  take  the  necessary  steps  to 
segregate  the  witnesses,  either  before  or  during  the  trial,  in  order  to 
prevent  intercommunication,  and-it  may  require  that  all  communica- 
tion between  a  witness  who  has  testified,  or  a  prospective  witness,  and 
counsel,  judge  advocate,  or  any  other  party,  be  in  the  presence  of  a 
provost  marshal. 

In  brief,  while  in  many  cases  of  a  routine  nature  it  is  not  consid- 
ered necessary  to  take  special  steps  to  safeguard  the  testimony,  the 
court  has  full  authority  at  any  time  to  take  such  steps  as  may  be 
necessary  to  insure  the  inviolability  and  the  uncolored  veracity  of  the 
testimony  which  is  to  be  given. 

Instruction  concerning  the  inviolability  of  testimony  and  the  im- 
propriety of  conversing  on  such  matters  should  be  given  to  every 
person  in  the  naval  service,  and  it  should  be  impressed  upon  him 
that,  whether  he  receives  special  warning  or  not,  it  is  at  all  times 
improper  to  converse  outside  of  court  upon  the  details  of  the  testi- 
mony he  has  given,  or  about  any  part  of  the  testimony  he  will  give 
if  called  upon  the  stand,  unless  directed  so  to  do  by  parties  to  the 
trial,  or  other  proper  authority. 


168  INSTRUCTIONS   FOR   COURTS   AND  BOARDS. 

(1)    TESTIMONY   BY   DEPOSITION. 

178.  Deposition. — A  deposition  is  the  testimony  of  a  witness,  put  or 
taken  down  in  writing,  under  oath  or  affirmation,  before  an  officer 
empowered  to  administer  oaths  (see  sec.  184),  in  answer  to  inter- 
rogatories and -cross- interrogatories  submitted,  by  the  party  desiring 
the  deposition  and  the  opposite  party. 

179.  When  taken.— See  act  of  February  16,  1909,  section  16   (35 
Stat.,  622),  quoted  under  article  29,  A,  G.  N.     (See  also  C.  M.  O.  29, 
1915,  5,  and  sec.  390.) 

180.  How  taken. — The  method  of  procedure  in  order  to  obtain  a 
deposition  is  as  follows:  The  party— prosecutor  or  defendant — de- 
siring the  deposition  submits  to  the  court  a  list  of  interrogatories  to 
be  propounded  to  the  absent  witness;  then  the  opposite  party,  after 
he  has  been  allowed  a  reasonable  time  for  this  purpose,  prepares  and 
submits  a  list  of  cross-interrogatories.    After  the  court  has  assented 
to  the  interrogatories  and  cross-interrogatories  thus  submitted,  it 
adds  such  as.  in  its  judgment,  may  be  necessary  to  elucidate  the 
whole  subject  of  the  testimony-  to  be  given  by  the  witness.    Deposi- 
tions may  also  be.  taken  before  the  assembling  of  the  court  by  mutual 
agreement  between  the  judge  advocate  and  the  accused   (counsel), 
subject  to  objections  when  read  in  court. 

If  the  witness  whose  deposition  it  is  desired  to  take  be  a  civilian, 
the  judge  advocate  should  prepare,  in  duplicate,  a  subpoena  requir- 
ing the  witness  to  appear  before  the  officer  designated  at  the  time  and 
place  designated  for  the  purpose  of  giving  his  deposition.  The  officer 
who  is  to  take  the  deposition  will  be  designated,  or  caused  to  be 
designated,  by  the  convening  authority,  or,  if  no  officer  under  the 
command  of  the  latter  be  available,  by  the  Secretary  of  the  Navy.  It 
may  be  left  to  the  designated  officer  to  name  the  time  and  place  of 
taking  the  deposition.  The  subpoena  (in  duplicate) ,  together  with  the 
interrogatories,  should  be  forwarded  to  the  officer  who  is  to  take  the 
deposition.  This  officer  will  cause  the  duplicate  subpoena  to  be  served 
personally  upon  the  witness  and  return  the  original,  with  indorse- 
ment that  the  duplicate  has  been  delivered,  to  the  judge  advocate. 
A  civilian  witness  who  attends  to  give  his  deposition  is  entitled  to 
the  same  fees  and  expenses  as  if  he  had  attended  personally  before 
the  court,  and  a  proper  account  with  the  required  data  should  be 
furnished.  (See  pp.  375-376.) 

If  the  deposition  of  a  person  in  the  service  is  required,  a  summons 
will  not  be  inclosed  with  the  interrogatories,  but  the  officer  before 
whom  the  deposition  is  to  be  taken,  or  the  officer  who  causes  it  to  be 
taken,  shall  direct  the  witness  to  appear  at  the  proper  time  and  place. 

181.  After  execution. — When  the  deposition  has  been  executed,  it 
shall  be  forwarded  sealed  to  the  judge  advocate,  who  then  becomes 
the  legal  custodian  thereof.    As  soon  as  practicable  after  its  receipt, 


INSTRUCTIONS  FOR  COURTS  AND  BOARDS.  169 

the  judge  advocate  shall  open  it  in  the  presence  of  the  accused  (coun- 
sel) and  submit  it  to  the  latter,  so  that  he  may  be  prepared  at  the 
proper  time  in  the  course  of  the  trial  to  make  any  objection  he  may  see 
fit.  The  judge  advocate,  as  the  legal  custodian  of  the  deposition,  is 
responsible  that  no  alteration  whatever  is  made  therein. 

182.  Introduction  of. — To  introduce  the  deposition,  the  judge  advo- 
cate takes  the  stand  as  a  witness  to  identify  the  document.     The 
party  offering  the  deposition  presents  it  to  the  opposite  party  and 
to  the  court  for  inspection  and  opportunity  to  interpose  objection  to 
its  admission;  and  then,  if  there  be  no  valid  objection  interposed, 
the   judge   advocate    shall    read    the    interrogatories    and    answers. 
Should  objection  be  interposed  by  either  party  to  the  trial,  the  court 
will  rule  upon  the  objection. 

If  it  should  prove  that  the  testimony  contained  in  a  deposition  is 
against  the  interest  of  the  party  causing  it  to  be  taken,  he  can  not  be 
compelled  to  introduce  it  in  evidence  against  his  wishes.  Nor  can  the 
opposite  party,  against  objection,  make  use  of  the  deposition,  but, 
where  applicable,  the  following  procedure  shall  be  followed : 

In  cases  where  the  party  (either  the  prosecution  or  the  defense) 
requesting  the  taking  of  a  deposition  has  been  taken  by  surprise,  or  if 
for  any  other  reason  the  answers  of  the  deponent  are  of  such  nature 
that  the  deposition  is  withdrawn,  the  court  should  allow  the  opposite 
side,  should  it  so  desire,  time  to  procure  another  deposition  from 
deponent  and  allow  the  deposition  to  be  introduced  into  evidence  out 
of  the  regular  order  if  necessary.  (File  26251-11382.) 

In  addition  to  objection  to  the  admission  of  the  deposition  as  a 
whole,  as  set  forth  above,  it  is,  even  after  admission,  subject  to  objec- 
tion, in  part,  in  the  same  manner  as  objection  might  be  made  to  the 
testimony  of  a  witness  actually  on  the  stand. 

If,  for  example,  an  interrogatory  in  the  deposition  reads : 

"Q.  Were  you,  on  March  3,  1916,  at  11  p.m.,  at  the  southeast  cor- 
ner of  Broadway  and  Forty-second  Street,  New  York  ?  " 

When  this  interrogatory  has  been  read,  an  objection  to  the  ques- 
tion as  a  leading  one  would  be  in  order.  If  made,  the  court  should 
sustain  the  objection  and  direct  that  the  answer  be  stricken  out,  in 
which  case  the  answer  would  not  be  read,  but  the  judge  advocate 
would  proceed  to  read  the  next  question. 

183.  Appended  to  record. — Whether  objections  have  or  have  not  been 
sustained,  the  entire  deposition  will  be  properly  marked,  appended 
to  the  record,  and  referred  to  in  the  proceedings. 

184.  Officers  who  are  authorized  to  administer  oaths. — The  act   of 
March  4,  1917,  provides,  "That  judges  advocate  of  naval  general 
courts-martial  and  courts  of  inquiry,  and  all  commanders  in  chief  of 
naval  squadrons,  commandants  of  navy  yards  and  stations,  officers 
commanding  vessels  of  the  Navy,  and  recruiting  officers  of  the  Navy, 


170  INSTRUCTIONS   FOR  COURTS  AND  BOARDS. 

and  the  adjutant  and  inspector,  assistants  adjutant  and  inspector, 
commanding  officers,  recruiting  officers  of  the  Marine  Corps,  and  such 
other  officers  of  the  Regular  Navy  and  Marine  Corps,  of  the  Naval 
Reserve  Corps,  of  the  Marine  Corps  Reserve,  and  of  the  National 
Naval  Volunteers  as  may  be  hereafter  designated  by  the  Secretary 
of  the  Navy,  be,  and  they  are  hereby,  authorized  to  administer  oaths 
for  the  purpose  of  the  administration  of  naval  justice  and  for  other 
purposes  of  naval  administration." 

When  practicable,  officers  and  men  of  the  Navy  and  Marine  Corps 
who  may  be  required  to  subscribe  under  oath  to  any  papers  relating 
to  naval  administration  and  the  administration  of  naval  justice  shall 
do  so  in  the  presence  of  officers  of  the  service  authorized  to  administer 
oaths. 

185.  Affidavits. — An  affidavit  differs  from  a  deposition  in  that  it  is 
taken  ex  parte  and  offers  the  opposite  party  no  opportunity  to  cross- 
examine  the  maker  thereof.    An  affidavit,  therefore,  is  not  admissible 
in  evidence  for  the  purpose  of  proving  the  subject  matter  with  which 
the  affidavit  deals.    A  rule  to  the  contrary  would,  in  effect,  permit  a 
person  to  testify  without  subjecting  him  to  cross-examination  by  the 
party  against  whom  his  testimony  is  given.     (In  this  connection  see 
C.  M.  O.  48,  1915,  1-3.) 

IV.  DOCUMENTARY  EVIDENCE. 

186.  Definition. — "  Legal  evidence  is  not  confined  to  the  human  voice 
or  oral   testimony,  but  includes  every   tangible  object   capable   of 
making  a  truthful  statement,  such  evidence  being  roughly  classified 
as  '  documentary  evidence.'    In  oral  evidence  the  witness  is  the  man 
who  speaks;  in  documentary  evidence  the  witness  is  the  thing  that 
speaks.     In  either  case  the  witness  must  be  competent — that  is,  must 
be  deemed  competent  to  make  a  truthful  statement — and  in  either 
case  the  competency  of  the  witness  must  be  proved  before  the  evi- 
dence is  admitted,  the  difference  being  that  in  oral  evidence  the 
competency  is  proved  by  a  legal  presumption,  and  in  documentary 
evidence  the  competency  must  be  proved  by  actual  testimony;  and 
the  further  difference  that  in  oral  evidence  the  credit  of  the  wit- 
ness is  tested  by  his  own  cross-examination,  while  in  documentary 
evidence  the  credit  of  the  witness  is  tested  by  the  cross-examination 
of  those  who  must  be  called  to  prove  its  competency."     (Words  and 
Phrases  Judicially  Defined,  vol.  3,  p.  2154.) 

187.  Method  of  introducing  documenatry  evidence. — When  documen- 
tary evidence  is  offered  before  courts-martial,  it  must  be  in  public 
session  of  the  court,  and  the  proper  procedure  is  as  follows:  The 
proper  custodian  (the  judge  advocate  or  other  person  properly  hav- 
ing the  document  in  his  possession)  takes  the  stand  as  a  witness  to 
identify  such  document ;  the  party  offering  the  document  presents  it 
to  the  opposite  party  and  to  the  court  for  inspection  and  opportunity 


INSTRUCTIONS  FOR   COURTS   AND   BOARDS.  171 

to  interpose  objection  to  its  admission;  and  then,  if  there  be  no  rea- 
sonable objection  interposed,  the  witness  reads  therefrom  such  entries 
as  may  be  pertinent  to  the  issue.  Should  objection  be  interposed  by 
either  party  to  the  trial,  the  court  will  rule  upon  the  objection,  and 
the  decision  of  the  court  thereon  will  be  final,  subject  to  consideration 
by  the  reviewing  authority. 

188.  Objection  to  admission  of  documentary  evidence. — A  reasonable 
objection  to  the  admission  of  documentary  evidence  is  one  which 
indicates  that  the  document  can  not  be  relied  upon  as  a  truthful 
statement.    In  some  cases  it  is  sufficient  merely  to  call  attention  to 
the  nature  of  the  document  in  order  to  make  reasonable  objection, 
as,  for  example,  ex  parte  affidavits,  letters  from  members  of  the 
family  of  an  accused,  certificates  from  a  physician  that  an  accused 
has  been  under  medical  treatment,  etc.,  the  admission  of  which  would, 
in  effect,  permit  the  author  to  testify  without  submitting  him  to 
cross-examination;  or  the  document  may  appear  on  its  face  as  of 
doubtful  veracity,  as  where  the  roll  of  a  militia  company,  with  arbi- 
trary pencil  marks,  was  held  inadmissible  to  prove  the  absence  of 
a  member  of  the  organization.     (Com.  v.  Peirce,  15  Pick.  (Mass.), 
170.)     In  other  cases  it  is  proper  to  call  witnesses  to  show  that  the 
document  is  not  competent  in  that  it  can  not  be  relied  upon  owing 
to  the  way  the  same  had  been  prepared,  as  in  a  case  published  in 
C.  M.  O.  28,  1909,  3,  where  it  was  stated :  "  It  also  appeared  from 
the  testimony  of  a  chief  yeoman  of  the  receiving  ship  on  which  [the 
accused]  wTas  delivered,  who  w^as  finally  called  as  a  witness,  that  the 
manner  in  which  reports  are  made  of  deserters  received  on  board  that 
vessel  is  not  such  as  to  warrant  their  being  received  in  evidence  even 
as  to  the  return  of  a  man  to  the  service."    So,  too,  it  may  be  shown 
that  entries  in  a  document  have  been  made  by  unauthorized  per- 
sons, or  that  the  document  is  a  forgery. 

189.  Alterations  in  a  document. — The  party  producing  as  genuine  a 
document  which  has  been  altered  in  a  part  material  to  the  question 
in  dispute,  and  which  appears  to  have  been  altered  after  its  execu- 
tion, must  satisfactorily  account  for  the  appearance  of  the  alteration 
before  the  document  will  be  received  in  evidence. 

190.  Evidence  as  to  the  contents  of  a  document. — As  a  general  rule 
the  best  evidence  as  to  the  contents  of  a  paper  is  the  production 
of  the  paper  itself  and  no  other  evidence  thereof  is  admissible, 
except  in  the  following  cases:    (a)   Where  the  original  has  been 
lost  or  destroyed,  in  which  case  parol  evidence  may  be  received  to 
establish  the  contents  of  the  writing,  or  an  authenticated  copy  may 
be  received;  (b)  where  the  original  is  a  record  or  other  document, 
in  custody  of  a  public  officer,  in  which  case  copies  duly  authenticated 
under  the  seal  of  a  department  are  admitted  in  evidence  in  the  same 
manner  as  the  originals,  and,  by  statute,  full  credence  is  to  be  given 

26450°— IT 12 


172  INSTRUCTIONS   FOR   COURTS  AND  BOARDS. 

them  (R.  S.,  882) ;  (c)  where  the  original  is  in  possession  of  the 
party  against  whom  the  evidence  is  offered  and  the  latter  fails  to 
produce  it  after  reasonable  notice,  in  which  case  either  parol  evi- 
dence, or  a  duly  authenticated  copy  may  be  received;  (d)  where  the 
original  consists  of  numerous  accounts  or  other  documents  which  can 
not  be  examined  by  the  court  without  great  loss  of  time,  and  the  fact 
sought  to  be  established  from  them  is  only  the  general  result  of  the 
whole,  in  which  case  parol  evidence  may  be  received  in  evidence 
to  establish  the  general  result  without  reading  the  records,  as,  for 
example,  where  an  officer's  official  record,  embracing  numerous  in- 
dividual reports,  letters,  etc.,  is  introduced  to  prove  that  he  has  never 
been  reported  for  certain  misconduct.  In  such  a  case  a  witness  who 
has  carefully  examined  the  reports  may  be  permitted  to  testify  as  to 
the  general  result — that  is,  that  the  official  record  contains  no  re- 
marks to  the  effect  that  the  accused  was  intemperate,  etc.  Likewise, 
where  it  is  desired  to  prove  from  a  document,  as  a  service  record,  that 
an  enlisted  man  has  received  an  average  mark  of  5  in  sobriety,  it  is 
unnecessary  to  read  all  his  marks  under  this  heading,  but  the  general 
result  may  be  stated  by  the  witness  who  has  examined  the  record. 

191.  Document  in  full  in  evidence. — Although  only  a  part  of  a  docu- 
ment may  have  been  read  to  the  court,  or  only  a  general  result 
deduced  therefrom  have  been  testified  to,  the  document  in  full  must 
have  been  offered  and  received  in  evidence  before  such  testimony  can 
be  received.  The  opposite  party  is  thus  afforded  an  opportunity  to 
call  upon  the  witness  to  read  such  additional  entries  as  may  be 
pertinent  to  the  issue  and  for  which  the  party  introducing  the  docu- 
ment failed  to  call.  Thus,  if  the  question  at  the  time  before  the 
court  is  the  character  of  an  accused,  and  the  defense  has  introduced 
in  evidence  his  service  record  from  which  it  has  been  shown  that  the 
accused  has  an  average  of  5  in  markings  in  sobriety,  the  judge  advo- 
cate, by  cross-examination,  can  require  the  witness  to  read  the  marks 
of  the  accused  in  obedience,  in  order  to  show  that  the  accused  has  a 
number  of  low  marks  therein  or  that  his  average  therein  is  low. 
In  other  words,  the  rule  provides  an  opportunity  for  the  court  to 
have  before  it  all  the  information  contained  in  the  document,  and 
the  party  introducing  it  in  evidence  can  not  pick  and  choose  there- 
from the  points  he  desires  to  set  forth  and  suppress  the  remainder. 
A  document  as  a  witness  does  not  differ  in  status  from  a  man  as  a 
witness;  the  opposite  party  and  the  court  can  demand  from  either 
all  admissible  evidence  in  possession  of  the  witness,  and  is  not  con- 
fined to  a  consideration  of  only  such  evidence  as  the  party  putting 
the  witness  on  the  stand  may  desire  adduced  from  that  witness.  But 
in  this  connection,  it  is  to  be  noted  that  the  documentary  evidence 
offered  to  a  court  need  not  necessarily  be  a  record  complete  in  itself. 
For  example,  when,  under  article  60  A.  G.  N.,  the  record  of  the  testi- 


INSTRUCTIONS   FOR   COURTS   AND  BOARDS.  173 

mony  of  a  witness,  from  whom  oral  testimony  can  not  be  obtained, 
given  before  a  court  of  inquiry,  is  offered  in  evidence  before  a  general 
court-martial,  the  full  document  admissible  in  evidence  is  the  record 
of  the  entire  testimony  of  such  witness  before  the  court  of  inquiry 
and  not  the  whole  record  of  proceedings  of  such  court.  See  C.  M.  O. 
f>4,  1917.) 

192.  Parol  evidence  offered  in  connection  with  a  document. — While 
parol  evidence  is  not  admissible  to  vary  in  any  way  the  contents  of  a 
document,  yet  it  may  be  received  for  the  purpose  of  explaining  any 
ambiguity  in  a  document  or  of  throwing  light  on  the  attendant  cir- 
cumstances. 

193.  Documentary  evidence  not  conclusive. — In  general,  a  document 
is  prima  fade  only  and  is  not  conclusive  evidence  of  the  facts  stated 
therein.    The  opposite  party  may  introduce  evidence  to  rebut  it  or 
show  that  the  contrary  is  the  truth. 

194.  Public  Documents. — Documentary  evidence  introduced  before 
naval  courts  is  usually  in  the  form  of  public  documents,  the  entries 
in  which  are  presumed  to  have  been  made  by  proper  authority. 
Among  such  are : 

195.  Service  records — Reports  of  deserters  received  on  board,  etc.— 
These  are  such  documents  as  may,  when  properly  identified  and  pro- 
duced, be  admitted  in  evidence.     The  general  rule  is  that  it  is  suffi- 
cient if  the  record  is  kept  in  the  discharge  of  a  public  duty  and  is 
a  convenient  and  appropriate  mode  of  discharging  that  duty  in  order 
that  it  may  be  admitted  as  a  public  document.     Thus,  a  record  has 
been  held  admissible  if  it  was  kept  by  the  direction  of  superior  offi- 
cers and  in  accordance  with  the  rules  and  practice  of  the  office.     (17 
Cyc.  307.)     The  entries  made  in  service  record  books  and  official  cer- 
tificates are  not  in  the  nature  of  private  entry  or  memorandum,  since 
they  are  made  by  public  officers  whose  duty  it  is  to  record  truly  the 
facts  stated  therein ;  and  it  is  not  necessary  that  the  entries  be  made 
personally  by  a  public  officer  himself,  if  the  entries  are  made  under 
his  direction  by  a  person  authorized  by  him.     (C.  M.  O.  31,  1915, 
14-15.) 

196.  Documentary  evidence  in  connection  with  the  proof  of  desertion. — 
The  most  frequent  use  of  documentary  evidence  before  courts-martial 
arises  in  cases  of  trial  for  desertion,  and  there  has  been  some  con- 
fusion in  applying  the  rules  of  evidence  in  this  regard.    The  follow- 
ing rules  apply  to  the  use  of  service  records  and  reports  of  deserters 
received  on  board  as  evidence  before  naval  courts-martial: 

The  mere  entry  of  desertion  in  a  service  record,  with  entries  of 
attendant  circumstances,  is  not  sufficient  to  prove  the  gravamen  of 
the  offense.  While  admissible,  it  is  only  prima  facie  evidence,  open 
to  explanation  and  to  rebutting  testimony,  and  while  it  would,  in  the 
absence  of  rebutting  testimony,  showr  that  the  accused  was  attached 


174  INSTRUCTIONS   FOR  COURTS  AND  BOARDS. 

to  and  serving  on  board  the  vessel,  or  stationed  at  the  navy  yard  or 
naval  station  indicated,  that  he  was  found  to  be  absent  at  a  certain 
time,  that  his  absence  continued  for  10  days  or  more,  and  that  it  was 
not  satisfactorily  explained,  it  would  not  be  of  sufficient  weight  to 
establish  the  fact  that  he  had  intended  permanently  to  abandon  the 
service,  that  he  was  possessed  of  the  animus  non  revertendi  (the 
intention  of  not  returning)  when  the  officer  made  the  entry.  Yet  the 
entries  mentioned  are  admissible  evidence  of  the  stated  facts  that 
were  within  the  knowledge  of  the  officers  who  made  the  entries  and 
are  by  no  means  without  probative  force  in  determining  whether  the 
offense  of  desertion  has  been  committed. 

The  entries  on  a  "  Report  of  deserter  received  on  board  "  are  en- 
titled to  consideration  when  such  report  has  been  properly  received 
in  evidence,  to  prove  the  date  and  place  of  return  from  unauthorized 
absence  of  the  party  mentioned  therein,  together  with  his  condition  at 
the  time,  the  state  of  his  wearing  apparel,  etc. 

The  question  of  animus  non  revertendi  must,  of  necessity,  always 
be  a  conclusion  from  certain  facts,  and  is  for  the  court  to  determine 
from  all  the  evidence  in  the  case. 

The  foregoing  (introduction  of  "  Service  record  and  report  of  de- 
serter received  on  board ")  "  present  applications  in  various  in- 
stances of  the  well-established  rule  that  official  reports  and  certifi- 
cates made  contemporaneously  with  the  facts  stated,  and  in  the  regu- 
lar course  of  official  duty,  by  an  officer  having  personal  knowledge 
of  them,  are  admissible  for  the  purpose  of  proving  such  facts."  (U.  S. 
v.  Corwin,  129  U.  S.,  385.)  They  are  not  conclusive  evidence  of  the 
facts  stated  therein,  and  rebutting  testimony  may  be  offered ;  but  they 
may  well  establish  the  case  for  the  prosecution,  if  an  accused  fail  to 
produce  sufficient  evidence  in  rebuttal  thereof  to  overcome  the  prima 
facie  case  so  made  out  against  him. 

"  Manifestly  the  design  and  meaning  of  the  rule  is  not  to  convert 
incompetent  and  irrelevant  evidence  into  competent  and  relevant  evi- 
dence simply  because  it  is  contained  in  an  official  communication." 
(U.  S.  v.  McCoy,  193  U.  S.,  601.)  Should  the  officer  who  made  the 
entries  be  testifying  under  oath,  his  assertion  that  an  accused  had 
deserted  would  be  excluded  as  inadmissible;  he  could  only  be  heard 
to  state  facts  within  his  knowledge,  such  as  the  fact  that  the  accused 
had  been  absent  without  leave,  had  disposed  of  his  clothing  before 
so  absenting  himself,  etc.,  from  which  the  court  would  conclude 
whether  such  facts  would  warrant  a  finding  of  guilty  on  a  charge  of 
desertion.  The  officer's  assertion  that  an  accused  had  deserted  would 
itself  imply  the  existence  of  primary  and  more  original  and  explicit 
sources  of  information. 

The  facts  necessary  to  make  out  a  case  of  desertion  may  be  proved 
not  only  by  the  records,  but  also  by  parol  evidence.  Where  records, 


INSTRUCTIONS  FOR  COURTS  AND  B.OARDS.          175 

as  the  above,  are  introduced  as  evidence,  it  is  not  necessary  or  re- 
quired that  the  officer  who  made  the  entries  be  shown  to  be  unavail- 
able by  reason  of  death,  absence,  or  other  circumstances  of  such  a 
nature.  (C.  M.  O.  31,  1915,  15-16.)  The  foregoing  supersedes 
C.  M.  O.  47,  1910,  9,  and  all  other  instructions  on  this  subject  con- 
flicting with  the  instructions  laid  down  herein. 
.  197.  Documentary  evidence  in  case  of  fraudulent  enlistment. — In  cases 
of  fraudulent  enlistment  the  original  shipping  articles  (enlistment 
paper),  in  the  absence  of  testimony  from  the  officer  who  enlisted  the 
accused,  will  be  necessary.  The  oath  and  declaration  is  not  contained 
in  the  service  record.  A  service  record  constitutes  the  official  history 
of  the  man;  the  shipping  articles  contain  the  oath  and  declaration. 
Finger-print  records  of  the  accused  are  also  admissible  in  this  con- 
nection. 

198.  Copies  of  records. — "  Copies  of  any  books,  records,  papers,  or 
documents  in  any  of  the  executive  departments,  authenticated  under 
the  seals  of  such  departments,  respectively,  shall  be  admitted  in  evi- 
dence equally  with  the  originals  thereof."     (R.  S.,  882.)     The  words 
"  documents  "  and  "  papers  "  can  not  be  held  to  mean  every  document 
or  paper  on  file,  but  only  such  as  were  made  by  an  officer  or  agent 
of  the  Government  in  the  course  of  his  official  duty.    (7  Ct.  Cls.,  407.) 

199.  Private  documents. — It  is  a  general  rule  that  private  docu- 
ments of  an  ex  parte  nature,  such  as  affidavits   (see  sec.  185),  are 
not  admissible  as  evidence  of  the  subject  matter  therein  contained. 
But  the  original  entries  and  writings  of  a  person  who  was  in  a  posi- 
tion to  know  the  facts  therein  stated,  made  at  about  the  time  such 
facts  occurred,  are  admissible  as  evidence  of  such  facts  under  the 
following  circumstances,  provided  the  entrant  is  unavailable  as  a 
witness  as  in  case  of  subsequent  death  or  insanity :  (1)  When  the  entry 
or  writing  is  against  the  interest  of  the  maker;  and  (2)  when  it  was 
made  in  due  course  of  business,  professional  capacity,  or  in  the  course 
of  the  person's  ordinary  and  regular  duties.    As  to  the  admissibility 
of  a  memorandum,  the  authenticity  of  which  is  vouched  for  by  a 
witness  on  the  stand,  see  section  145. 

200.  When  document  is  not  offered  testimonially  as  to  its  contents. — 
The  distinction  must  be  recognized  between  cases  in  which  a  docu- 
ment is  offered  as  evidence  of  the  truth  of  the  facts  stated  therein  and 
those  in  which  it  is  not  so  offered.    As,  for  example,  in  a  case  where 
the  specification  alleged  that  certain  conduct  brought  scandal  and 
disgrace  upon  the  naval  service,  it  was  held  that  a  newspaper  was 
properly  admissible  in  evidence,  not  as  evidence  of  the  facts  stated 
therein  in  regard  to  the  conduct  of  the  accused  which  must  be  other- 
wise established,  but  as  evidence  of  the  publicity  which  was  given  the 
alleged -misconduct,  for  which  purpose  it  was  not  hearsay  but  was  the 
best  evidence.    (C.  M.  O.  4, 1913,  55.) 


176  INSTRUCTIONS  FOB  COURTS  AND  BOARDS. 

201.  When  question  as  to  genuineness  of  handwriting  is  involved. — 
See  sec.  146  (c). 

202.  When  a  document  is  not  in  the  hands  of  the  party  desiring  to 
introduce  it. — If  the  document  or  paper  to  be  introduced  is  not  in  the 
hands  of  the  party  desiring  to  introduce  it,  it  may  be  produced  in 
-court  by  serving  a  subpwna  duces  tecum  upon  the  holder.     (See 

p.  374.) 

203.  In  connection  with  making  up  the  record. — In  general,  either  the 
document  itself,  or  a  certified  copy  thereof,  or  a  certified  copy  of 
such  extracts  therefrom  as  were  read  to  the  court,  by  either  party, 
must  be  appended  to  the  record,  or  set  out  in  full  in  the  recorded 
testimony  of  the  witness  who  reads  from  the  document.     As,  how- 
ever, an  officer's  record  is  a  part  of  the  official  files  of  the  department, 
it  is  not  required  that  the  original  or  a  certified  copy  of  the  same  be 
attached  to  the  record  of  proceedings  where  the  court  is  one  con- 
vened by  the  Secretary  of  the  Navy.    Also,  when  a  document  is  an 
exhibit  attached  to  the  record  of  a  court  of  inquiry,  or  to  another 
court-martial  record,  and  is  such  that  a  copy  could  not  well  be  made, 
as  a  chart,  design,  etc.,  or  where  documentary  evidence  is  ruled  out, 
neither  the  original  nor  a  certified  copy  thereof  need  be  appended  to 
the  record ;  but  its  contents  should  be  referred  to  in  the  body  of  the 
record,  at  the  appropriate  place,  so  that  the  reviewing  authority  may 
know  what  the  document  was  and  where  it  may  be  found. 

V.  EVIDENCE  IN  GENERAL. 

204.  Under  this  head  there  is  to  be  considered: 

(1)  Order  of  introducing  evidence. 

(2)  Weighing  evidence. 

(3)  Evidence  in  aggravation  or  extenuation. 

( 1 )   ORDER  OF  INTRODUCING  EVIDENCE. 

205.  Order  for  the  introduction  of  evidence.-— The  proper  and  usual 
order  and  sequence  for  the  introduction  of  evidence  is  as  follows: 
First,  by  the  prosecution;  second,  by  the  defense;  third,  rebuttal  by 
the  prosecution ;  fourth,  sur rebuttal  by  the  defense.     The  beginning 
and  end  of  each  of  these  steps  shall  be  noted  in  the  record.     The 
court  may,  in  the  interests  of  justice,  allow  evidence  to  be  introduced 
out  of  the  above  order  and  may,  for  satisfactory  cause,  allow  the 
prosecution  or  the  defense  to  introduce  evidence  at  any  time  before 
arriving  at  its  findings  thereon,  but  it  shall  not  thereafter  receive 
any  new  evidence.     The  court  may  also  permit  a  case  once  closed 
by  either  or  both  sides  to  be  reopened  for  the  introduction  of  evi- 
dence previously  omitted,  if  the  court  has  not  yet  arrived  at  its  find- 


INSTRUCTIONS  FOR   COURTS  AND  BOARDS.  177 

ings  and  if  convinced  that  such  evidence  is  so  material  that  its  omis- 
sion would  leave  the  investigation  incomplete.  In  all  such  cases 
both  parties  must  be  present,  and  any  evidence  thus  received  would 
be  subject  to  cross.-examination  and  rebuttal  by  the  party  to  whom  it 
may  be  adverse.  All  evidence,  whatever  its  nature,  shall  be  recorded 
in  the  proceedings  in  the  order  in  which  it  is  received  by  the  court. 

206.  Rebuttal. — During  the  rebuttal  evidence  may  be  introduced  by 
the  prosecution  "to  explain  or  repel  the  evidence  introduced  by  the 
defense.     In  general,  anything  may  be  given  as  rebutting  evidence 
which  is  a  direct  reply  to  that  produced  by  the  other  side.     The 
judge  advocate  may  rebut  any  new  matter  by  evidence  in  rebuttal; 
he  may  impeach  the  testimony  of  witnesses  for  the  defense,  or  may 
sustain  the  credibility  of  his  own  witnesses. 

The  evidence  here  introduced  should,  in  general,  be  confined  to 
such  as  relates  to  evidence  introduced  by  the  defense. 

207.  Surrebutal. — The  defense  is  accorded  an  opportunity  in  the 
surrebuttal,  to  overcome  matters  brought  out  in  the  rebuttal;  that 
is,  the  defense  may  here  attempt  to  sustain  its  original  evidence. 

(2)    WEIGHING  EVIDENCE. 

' 

208.  Weighing  evidence. — In  weighing  evidence  the  court  may  con- 
sider: (1)  The  witness's  manner  of  testifying;  (2)  his  intelligence; 
(3)  his  means  and  opportunities  of  knowing  the  facts  to  which  he 
testifies;  (4)  the  nature  of  the  facts  to  which  he  testifies;   (5)  the 
probability  or  improbability  of  his  testimony;   (6)  his  interest  or 
want  of  interest;  (7)  his  personal  credibility,  so  far  as  it  legitimately 
appears  upon  the  trial;  (8)  the  number  of  witnesses,  subject  to  the 
remarks  in  the  following  section ;  (9)  all  the  facts  and  circumstances 
of  the  case.     (See,  in  this  connection,  C.  M.  O.  16,  1916,  7-9  and  9, 
1916,  6—7.) 

209*  Weight  of  evidence  as  affected  by  the  number  of  witnesses. — The 
relative  number  of  witnesses  for  the  prosecution  and  the  defense  is 
by  no  means  decisive  in  general,  as  the  relative  weight  of  the  evi- 
dence depends  much  less  upon  the  number  of  witnesses  than  upon 
their  character,  their  relation  to  the  case,  and  the  circumstances 
under  which  their  testimony  is  given.  The  "weight  of  evidence" 
is  not  a  question  of  mathematics,  but  depends  on  its  effect  in  inducing 
belief.  It  often  happens  that  one  witness,  standing  uncorroborated, 
may  tell  a  story  so  natural  and  reasonable  in  its  character,  and  in 
a  manner  so  sincere  and  honest  as  to  command  belief,  although  sev- 
eral witnesses  of  apparently  equal  respectability  may  contradict  him. 
The  question  for  the  court  is  not  on  which  side  are  the  witnesses 
the  more  numerous,  but  what  evidence  does  it  believe. 

210.  Weight  to  be  given  testimony  of  the  accused.— The  fact  that  a 
witness  is  the  accused  does  not  condemn  him  as  unworthy  of  belief, 


178  INSTRUCTIONS  FOR  COURTS  AND  BOARDS. 

but  does  create  in  him  an  interest  greater  than  that  in  any  other 
witness,  and  to  that  extent  affects  the  question  of  credibility.  It  is  a 
general  rule  that  the  relations  of  a  witness  to  the  matter  to  be  decided 
are  legitimate  subjects  of  consideration  in  respect  to  the  weight  to  be 
given  to  his  testimony.  In  every  case  the  testimony  of  an  accused 
should  be  considered  in  connection  with  all  the  evidence  adduced  and 
given  such  weight  as  the  court  may  believe  it  to  merit.  (See  Reagan 
v.  United  States,  157  U.  S.,  301.) 

211.  Cumulative  evidence  unnecessary. — When  a  fact  has-been  suffi- 
ciently established,  it  is  unnecessary  to  consume  the  time  of  the  court 
by  the  introduction  of  additional  evidence  which  is  merely  cumula- 
tive, as  such  carries  no  additional  weight. 

(3)    EVIDENCE   IN    AGGRAVATION    OR   EXTENUATION. 

212.  Plea  of  guilty  does  not  exclude  evidence  for  the  prosecution. — 
A  plea  of  guilty  does  not  necessarily  exclude  evidence  for  the  prosecu- 
tion.   Where  the  court  has  discretionary  power  as  to  the  punishment 
to  be  awarded,  it  is  proper  that  it  should  have  full  knowledge  of 
all  the  circumstances  attending  the  offense.    The  reviewing  authority 
is  also  entitled  to  this  knowledge,  and  to  this  end  it  is  proper  for 
the  court  to  take  evidence  after  a  plea  of  guilty,  unless  the  facts  are 
so  fully  set  forth  in  the  specification  as  to  show  all  the  circumstances 
of  mitigation  or  aggravation. 

213.  Accused  may  cross-examine. — When  evidence  of  this  character 
is  introduced  after  a  plea  of  guilty,  the  accused  has  the  same  right  to 
cross-examine  the  witnesses  and  to  offer  evidence  in  rebuttal  as 
though  he  had  pleaded  not  guilty. 

214.  Character  evidence. — In  cases  at  naval  law  character  evidence 
is  usually  offered  for  the  purpose  of  obtaining  mitigation  of  the  pun- 
ishment which  may  follow  in  case  of  conviction.    Thus  offered,  it  is 
given  a  wide  latitude;  it  need  not  be  limited  to  general  good  char- 
acter, but  may  include  particular  acts  of  good  conduct,  bravery,  etc. ; 
it  need  have  no  reference  to  the  nature  of  the  charge,  but  may  ex- 
hibit the  reputation  or  record  of  the  accused  in  the  service  for  effi- 
ciency, fidelity,  subordination,  temperance,  courage,  or  any  of  the 
traits-  that  go  to  make  a  good  officer  or  enlisted  man.     But  when 
character  evidence  is  offered  by  the  defense  as  bearing  on  the  issue, 
such  evidence  must  be  as  to  general  character;  particular  acts  of 
merit  are  not  admissible.     Also,  when  thus  offered,  the  character 
shown  must  be  of  such  a  nature  as  to  be  relevant  to  the  issue  involved 
in  the  case;  as  a  general  reputation  for  sobriety  when  charged  with 
drunkenness,  or  for  obedience  when  charged  with  disobedience.     (As 
to  the  duty  of  a  judge  advocate  (recorder)  to  rebut  character  evi- 
dence, see  C.  M.  O.  39,  1915,  but  this  applies  only  when  evidence  as 
to  good  character  has  first  been  introduced  by  the  defense.) 


IX. 

GENERAL  COURTS-MARTIAL. 

(A.  G.  N.  35  to  43;  45  to  54;  and 
subsequent  statutory  enactments  quoted  thereunder.) 


179 


GENERAL  COURTS-MARTIAL. 


Page. 

Place  of  meeting — sessions 183 

Convening   authority 183 

Constitution  183 

Precept 184 

Charges  and  specifications 185 

Members 186 

President —  188 

Judge  advocate 188 

Counsel  for  judge  advocate 191 

Accused : 192 

Counsel   for  accused 192 

Clerk,  stenographer,  and  interpreter 193 

Provost  marshal,  guard,  and  orderlies. 193 

Challenge : 194 

Oaths 195 

Postponement 197 

Arraignment 197 

Preliminary  motions 197 

Pleas  to  the  issue 200 

Witnesses  L 202 

Statement  and  arguments 202 

Findings 203 

Record  of  previous  convictions 205 

Sentence 207 

Recommendation  to  clemency — , , 211 

Record  of  proceedings ,'JJL'J. „..,—, „., 211 

Revision j , _ ____  213 

Reviewing   authority—™—— ___ __ _______  215 

Dissolution  of  court ; _______ „  217 

Limitation  of  punishment _•_„__ — 217 

181 


. 
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„ 

• 

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, 

„ 
• 
• 

. 

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' 


COURTS-MARTIAL  IX  GENERAL. 

PLACE   OF    MEETING SESSIONS. 

215.  Place  of  meeting. — Courts-martial  are  assembled  and  held  in 
a  convenient  part  of  a  ship  or  navy  yard  or  other  place  as  may  be 
ordered.     But  no  naval  court  or  assembly  of  a  judicial  character 
shall  be  ordered  or  permitted  to  assemble  or  conduct  any  part  of  its 
proceedings  in  any  place  subject  to  foreign  jurisdiction.    When,  how- 
ever, United  States  forces  have  landed  in  foreign  territory  for  mili- 
tary purposes,  that  part  of  the  foreign  territory  actually  occupied 
by  such  forces  is  not  subject  to  foreign  jurisdiction  within  the  mean- 
ing of  this  section.     (C.  M.  O.  42,  1915,  10.)     Should  a  court-martial 
at  any  time  find  it  necessary  to  meet  at  a  place  other  than  that 
ordered,  the  sanction  of  the  convening  authority  to  make  such  change 
should  be  obtained. 

216.  Hours  of  sessions. — A  naval  court-martial  may  hold  sessions 
at  any  hour  of  the  day,  but  courts-martial  are  not  to  meet  at  unusual 
hours,  nor  should  the  duration  of  the  sittings  be  unusually  pro- 
tracted, unless  the  court  is  informed  by  the  convening  authority  that 
the  case  is  one  of  extraordinary  urgency  and  that  such  a  measure  is 
therefore  warranted. 

217.  Sessions  to  be  public. — The  sessions  of  courts-martial  shall  be 
public,  and  in  general  all  persons  except  such  as  may  be  required  to 
give  evidence  shall  be  admitted.     (In  this  connection  see  C.  M.  O.  51, 
1914,  3,  for  procedure  to  be  followed  in  case  it  is  desired  to  exclude 
certain  classes  of  persons.) 

CONVENING  AUTHORITY. 

218.  Convening  authority. — See  article  38,  A.  G.  N.,  and  subsequent 
statutory  enactments  quoted  thereunder  (p.  39). 

CONSTITUTION. 

• 

219.  Composition  of  court.— See  article  39,  A.  G.  N.  (p.  40). 

220.  Rank  of  members. — Except  in  cases  of  emergency,  the  circum- 
stances of  which  shall  be  reported  in  writing  to  the  department  by 
the  convening  authority,  no  officer  shall  be  ordered  as  president  or 
member  of  a  general  court-martial  who  is  below  the  rank  of  lieu- 
tenant in  the  Navy  or  captain  in  the  Marine  Corps. 

183 


INSTRUCTIONS  FOR  COURTS  AND  BOARDS. 

•  221.  Trial  of  staff  or  marine  officer. — In  detailing  officers  for  the 
trial  of  a  medical,  pay,  or  marine  officer  it  is  proper,  if  the  exigencies 
of  the  service  permit,  that  at  least  one-third  of  the  court  be  composed 
of  officers  of  the  same  corps  as  the  person  to  be  tried. 

222.  Personnel  of  conrt. — No  officer  should  be  named  as  a  member 
against  whom  either  the  judge  advocate  or  the  accused  can  reason- 
ably object  when  called  upon  to  exercise  the  privilege  of  challenge. 
(In  this  connection  see  C.  M.  0.  9,  1916,  8.)  IQ  30fil<1    gis 

223.  Application  of  limitations  as  to  number,  rank,  and  corps. — In 
applying  the  limitations  above  as  to  number,  rank,  and  corps  of  mem- 
bers, it  rests  with  the  discretion  of  the  convening  authority  as  to 
what  would  constitute  an  injury  to  the  service. 

224.  Officers  of  the  National  Naval  Volunteers,  Naval  Militia,  Naval 
Reserve  Force,  Coast  Guard,  etc.,  as  members. — As  to  officers  of  the  Na- 
tional Naval  Volunteers,  Naval  Militia,  Naval  Reserve  Force,  Coast 
Guard,  and  the  several  services  enumerated  in  section  25  as  coming 
under  naval  jurisdiction  at  certain  times,  sitting  as  members  of 
courts-martial  for  the  trial  of  officers  and  men  of  the  United  States 
naval  service,  the  said  Volunteers,  Militia,  Reserves,  Coast  Guard, 
and  other  services,  see  General  Order  No.  296. 

225.  Changes  in  court. — Changes  in  the  composition  of  the  court  can 
legally  be  made  only  by  the  convening  authority,  and  no  officer  is 
empowered  to  sit  as  a  member  or  judge  advocate  except  in  obedience 
to  an  order  signed  by  such  authority  and  addressed  to  the  court. 
(See  P.  368.) 

2:26.  Changes  in  composition  may  be  made  by  signal. — Changes  in  the 
composition  of,  or  instructions  to,  general  courts-martial  may  be 
made  by  signal,  but  the  signal  shall  be  followed  by  a  written  con- 

ft  :• 

firmation. 

227.  Five  members  form  a  quorum. — The  number  of  members  may 
be  reduced  by  various  causes  during  a  trial,  but  so  long  as  five  mem- 
bers remain  the  court  is  a  legal  court  and  can  proceed.     If  reduced 
below  the  number  of  five,  the  court  must  still  meet  and  adjourn  from 
day  to  day  until  the  absent  members  return,  or  until  sufficient  addi- 
tional members  are  detailed  thereto,  or  until  the  court  is  dissolved 
by  the  convening  authority,  who  should  be  notified  of  the  condition 
of  affairs. 

THE  PRECEPT. 

.(01  .q)  .7  - :  --.tairoo  lo  nottiaoqffloO  .61S 

228.  The  precept. — The  precept  is  the  order  convening  the  court. 
It  is  signed  by  the  convening  authority  and  addressed  to  the  presi- 
dent of  the  court.     It  specifies  the  time  and  place  of  meeting  and 
recites  the  composition  of  the  court.    Supplementary  to  the  precept, 


INSTRUCTIONS   FOR   COURTS  AND   BOARDS.  185 

individual  orders  are  issued  to  the  officers  named  therein  directing 
them  to  perform  the  duties  set  forth  in  the  precept.  (But  such  orders 
from  the  Chief  of  the  Bureau  of  Navigation  or  Commandant,  Marine 
Corps,  are  not  in  themselves  sufficient.  Appointment  by  the  conven- 
ing authority  is  necessary.  See  C.  M.  O.  49,  1910,  6.)  If  the  conven- 
ing authority  desires  to  authorize  the  court  to  adjourn  over  holidays, 
the  precept  should  specifically  state  that  such  authority  has  been 
granted.  (See  A.  G.  N.  45.)  When  less  than  13  members  are  de- 
tailed on  a  general  court-martial,  or  any  of  the  discretionary  provi- 
sions under  "  Constitution  "  above  have  not  been  fulfilled,  the  precept 
should  specifically  state  that  "  no  other  officers  can  be  detailed  with- 
out injury  to  the  service."  (See  pp.  343,  367,  and  371-373.) 

229.  Precept  read. — The  precept,  together  with  any  orders  from  the 
convening  authority  directing  a  change  in  the  composition  of  the 
court  set  forth  therein,  must  be  read  by  the  judge  advocate  in  court 
in  the  presence  of  the  accused. 

230.  Copy  of  precept  to  be  prefixed  to  record. — A  copy  of  the  precept, 
together  with  copies  of  any  orders  from  the  convening  authority 
directing  changes  in  the  composition  of  the  court  set  forth  therein, 
shall  be  prefixed  to  the  record  of  proceedings  in  each  and  every  case. 

231.  Disposition  of  original  precepts. — The  original  precept,  together 
with  any  orders  directing  changes  in  the  composition  of  the  court  set 
forth  therein,  shall  be  kept  until  the  court  is  dissolved,  or,  in  the  case 
of  a  permanent  navy-yard  court,  until  a  new  precept  is  issued,  and 
then  returned  to  the  convening  authority.    If  the  convening  authority 
be  other  than  the  Secretary  of  the  Navy,  he  shall  then  forward  the 
same  to  the  Navy  Department  (Office  of  the  Judge  Advocate  Gen- 
eral). 

THE  CHARGES  AND  SPECIFICATIONS. 

(See  Chap.  VI.) 

. 

232.  Copy  of  charges  and  specifications  forwarded  to  the  accused. — 

The  copy  is  sent  to  the  accused  by  the  convening  authority  through 
the  usual  official  channels.  (See  p.  368.)  Facts  as  to  the  delivery 
may  be  obtained  from  the  commanding  officer  under  whom  the  ac- 
cused •  is  serving.  The  accused  shall  be  asked  whether  he  has  re- 
ceived a  copy  of  the  charges  and  specifications  preferred  against  him, 
and  on  what  date. 

233.  Denial  of  accused  as  to  receipt. — If  the  accused  denies  having 
received  a  copy  of  the  charges  and  specifications,  evidence  to  estab- 
lish the  fact  may  be  introduced. 

234.  Original  prefixed  to  record. — The  original  charges  and  specifica- 
tions shall  be  prefixed  to  the  record  in  each  case. 


186  INSTRUCTIONS  FOR  COURTS  AND  BOARDS. 

235.  Must  be  pronounced  in  due  form  and  technically  correct. — After 
the  court  has  been  organized  (sworn),  the  accused  is  asked  if  he  has 
any  objections  to  make  to  the  charges  and  specifications.    If  he  does 
not  object  to  any  feature  of  them,  and  the  judge  advocate  reports  no 
defect  in  them,  and  if  the  members  of  the  court,  after  carefully 
scrutinizing  them  in  closed  court,  find  no  defect  in  them,  the  court 
pronounces  the  charges  and  specifications  in  due  form  and  tech- 
nically correct.     (For  the  procedure  in  case  of  errors  see  sec.  56.) 
An  entry  to  this  effect  must  be  made  upon  the  record.     After  this 
stage  of  the  proceedings  the  accused  is  estopped  from  objecting  to 
any  feature  of  the  charges  and  specifications  except  an  error  in  sub- 
stance.   (See  sec.  56  (3).)    Since  an  error  in  substance  is  one  of  such 
a  nature  as  to  vitiate  the  entire  proceedings,  it  may  be  noted  at  any 
stage  of  the  trial  that  it  manifests  itself. 

THE  MEMBERS. 

236.  Take  seat  in  order  of  rank. — The  members  are  named  in  the 
precept  in  order  of  their  rank  and  take  seat  accordingly,  the  presi- 
dent at  the  head  of  the  table  and  other  members  at  his  right  and 
left  alternately. 

237.  Duties  in  general. — In  general,  the  members  of  the  court,  as  a 
body,  finally  decide  upon  all  questions  as  to  the  admissibility  of  evi- 
dence and  pass  upon  all  questions  presented  to  the  court  during  the 
course  of  the  proceedings.    Also,  the  members  of  a  court,  who  sign 
its  proceedings,  as  well  as  the  judge  advocate,  are  responsible  for  the 
correctness  of  same. 

238.  Voting. — The  vote  of  each  member,  upon  a  question  arising 
before  the  court,  has  equal  weight,  and,  in  taking  the  opinion  of  the 
court,  the  junior  member  shall  vote  first  and  then  the  others  in  inverse 
order  of  their  seniority.    In  the  event  of  a  tie  vote  upon  a  motion  or 
objection,  the  same  is  not  sustained.    When  there  is  a  majority,  the 
view  of  the  majority  becomes  the  decision  of  the  court.    For  method 
of  arriving  at  the  findings  and  sentence  see  sections  318  and  336. 

239.  Duty  of  members  to  decide  according  to  the  law,  even  if  at  vari- 
ance with  their  individual  beliefs. — Courts-martial  can  not,  with  pro- 
priety, attempt  to  rise  above  the  law,  of  which  they  are  the  creatures, 
and  disregard  the  provisions  of  law.     (See  C.  M.  O.  4,  1913,  56.)    If 
by  reason  of  a  lack  of  knowledge  of  the  law  a  court  arrives  at  an  in- 
correct finding  or  unjustified  sentence,  there  has  been  provided,  in 
the  interests  of  justice,  a  means  of  correcting  such  error.    The  de- 
partment may  return  the  record  for  further  consideration,  pointing 
out  what  the  law  is  in  the  premises.    In  such  event  the  court  is  not 

justified  in  disregarding  the  law  because  an  application  of  the  same 

- 


INSTRUCTIONS  FOR  COURTS  AND  BOARDS.  187 

may  reach  a  result  at  variance  with  the  individual  beliefs  of  a  ma- 
jority of  its  members,  but  should  accept  the  law  as  laid  down  to  it 
by  proper  authority  and  come  to  its  findings  and  sentence  anew 
accordingly.  (See  C.  M.  O.  25,  1916,  4.) 

240.  Liability  of  members. — A  court-martial  has  no  power  to  punish 
its  members,  but  a  member  is  liable  for  improper  conduct  as  for  any 
other  offense  against  naval  discipline. 

The  members  of  a  duly  constituted  and  organized  court-martial 
can  not  be  interfered  with  in  their  proceedings  by  naval  authority, 
yet  they  are  responsible  in  civil  courts  for  any  abuse  of  power  or 
illegal  proceedings. 

241.  Status  of  members  in  respect  to  other  duties. — An  officer  detailed 
for  duty  on  a  general  court-martial  is,  while  so  serving,  exempt  from 
other  duty,  except  in  cases  of  emergency,  to  be  judged  by  his  imme- 
diate commanding  officer,  who  shall,  in  case  he  require  such  officer 
to  perform  other  duty,  at  once  communicate  with  the  convening 
authority,  assigning  the  reasons  for  his  action. 

When  a  general  court-martial  adjourns  without  day,  or  for  a 
period  of  more  than  two  days,  the  president  of  the  court  shall  report 
the  fact  to  the  senior  officer  present,  and  the  members  of  the  court 
shall  then  be  available  for  other  duty. 

242.  Absence  of  members.— See  article  46,  A.  G.  N.  (p.  42). 

243.  Order  from  superior. — In  case  of  absence  by  reason  of  an  order 
from  a  superior  officer,  the  provisions    of    the    Navy    Regulations 
(R-1513   (2) )   shall  be  complied  with.     The  report  of  the  circum- 
stances shall  be  forwarded  by  the  member  receiving  such  order  to 
the  convening  authority  through  the  president  of  the  court,  and  a 
copy  of  such  report  shall  be  attached  to  the  record  of  each  case  to 
which  it  applies. 

244.  Illness  of  member. — In  case  a  member  is  ill,  he  shall,  if  able, 
request  the  attending  medical  officer  to  report  the  fact  of  his  sickness 
to  the  convening  authority,  and  such  request  will  be  complied  with. 
The  report  shall  be  forwarded  through  the  president  of  the  court, 
and  a  copy  thereof  will  be  attached  to  the  record  of  each  case  to  which 
it  applies.    When  the  member  is  able  to  resume  his  duties,  the  attend- 
ing medical  officer  shall  report  such  fact  in  the  same  manner  as  above 
prescribed. 

245.  Detachment  from  ship  or  station. — The  detachment  of  an  officer 
from  his  ship  or  station  does  not  of  itself  relieve  him  from  duty  as 
a  member  or  judge  advocate  of  a  general  court-martial ;  specific  orders 
for  such  relief  are  necessary. 

246.  Procedure  in  case  of  absence  of  a  member. — In  case  of  the  com- 
pulsory temporary  absence  of  a  member,  the  court  may  excuse  the 
member  so  absent  from  further  attendance  upon  the  case  then  pend- 

26450°— 17 13 


188  INSTRUCTIONS  FOB  COURTS  AND  BOARDS. 

ing,  provided  there  remain  the  legal  number  of  members  present ;  but 
should  that  not  be  deemed  possible  or  advisable,  and  should  such 
member  resume  his  seat,  the  record  of  proceedings  during  his  ab- 
sence shall  be  read  to  him  and  the  requirements  of  article  47,  A.  G.  N., 
shall  be  strictly  complied  with.  If  the  absence  of  a  member  reduces 
the  court  below  the  legal  minimum,  an  adjournment  should  be  taken 
until  the  next  day  or  over  Sunday,  as  the  case  may  be,  unless  it 
appears  that  the  absence  of  the  member  may  be  protracted,  in  which 
case  the  president  should  inform  the  convening  authority  of  the  facts. 

247.  Procedure  upon  seating  of  new  member. — In  the  case  of  a  new 
member  of  the  court  being  appointed  after  the  trial  has  begun,  he 
shall  take  his  seat  as  such,  subject  to  challenge  in  the  same  manner 
as  other  members,  the  reading  of  the  record  of  proceedings  of  the 
trial  to  date,  and  the  requirements  of  article  47,  A.  G.  N. 

. 

THE  PRESIDENT. 

248.  Duties  in  general. — The  senior  officer  in  rank  of  a  naval  general 
court-martial  becomes  president  thereof  by  virtue  of  his  rank.    Be- 
sides his  duties  and  privileges  as  a  member,  he  is  the  organ  of  the 
court.     He  is  responsible  for  the  dignified  and  orderly  conduct  of 
the  proceedings  of  the  court  and  is  empowered  to  keep  order.     He 
shall  recognize  the  equality  of  members  in  deciding  questions  pre- 
sented to  the  court  in  the  course  of  its  proceedings,  and  in  all  cases 
where  such  questions  arise  he  shall  order  the  court  cleared  for  the 
purpose  of  reaching  a  decision  thereon.     (See  sec.  238.)     The  presi- 
dent speaks  and  acts  for  the  court  and  in  every  case  announces  the 
ruling  of  the  court.    He  is  also  responsible  that  all  persons  called 
before  the  court  are  treated  in  a  becoming  manner,  and  in  all  cases 
of  impropriety,  whether  in  language  or  behavior,  shall,  if  necessary, 
report  the  offender  to  the  convening  authority. 

249.  Administers  oaths. — The  president  administers  the  oath  to  the 
judge  advocate  and  to  the  witnesses. 

THE  JUDGE  ADVOCATE. 

250.  Eesponsible  to  convening  authority. — The  judge  advocate  is,  in 
his  military  character  as  an  officer,  responsible  for  the  proper  dis- 
charge of  his  duty  to  the  convening  authority.     (In  this  connection 
see  C.  M.  O.  49,  1915,  10-11.) 

251.  Appointment  of  judge  advocate. — The  authority  to  convene  gen- 
eral courts-martial  implies  the  power  to  appoint  the  judge  advocate. 
When,  therefore,  it  is  decided  to  assemble  a  general  court-martial, 
the  convening  authority  shall  select  a  competent  commissioned  officer, 
who  shall,  if  possible,  not  be  liable  to  summons  as  a  material  witness 


INSTRUCTIONS   FOR   COURTS  AND   BOARDS.  189 

in  the  case,  to  perform  the  duties  of  judge  advocate,  and  shall  name 
him  as  such  in  the  order  convening  the  court. 

252.  Judge  advocate  not  to  be  challenged. — Neither  the  judge  advo- 
cate nor  the  counsel,  if  any,  detailed  to  assist  him  may  be  challenged 
on  any  grounds. 

253.  Duties  before  trial. — When  the  judge  advocate  is  notified  that 
a  case  is  to  be  tried  before  the  court  of  which  he  is  judge  advocate, 
he  should  be  furnished  with  such  papers  and  instructions  as  are  con- 
sidered necessary  for  his  guidance.    The  record  of  proceedings  of  a 
court  of  inquiry  in  the  case,  if  any  has  been  held,  must  be  trans- 
mitted to  the  judge  advocate,  who  shall  examine  it,  to  the  end  that 
he  may,  if  practicable,  summon  all  the  necessary  witnesses.     He 
should  question  such  persons  as  the  papers  in  his  possession  indicate 
have  any  knowledge  of  the  facts  involved  with  a  view  to  obtaining 
all  necessary  evidence  to  sustain  the  charges  and  specifications. 

It  is  his  duty  to  ascertain  that  the  accused  has  received  a  true  copy 
of  the  charges  and  specifications  preferred  against  him  and  when 
the  same  was  received.  He  shall  critically  examine  the  charges  and 
specifications  in  order  that,  prior  to  the  arraignment,  he  may  advise 
the  convening  authority  of  any  technical  inaccuracies  that  he  may 
discover.  (See  sec.  56.) 

Before  the  court  assembles  the  judge  advocate  should  also  see 
that  a  suitable  place  is  provided  for  the  sessions  of  the  court,  and 
that  it  is  supplied  with  writing  materials  for  the  use  of  the  members. 
He  should  summon  the  necessary  witnesses  for  the  prosecution,  obtain 
from  the  accused  a  list  of  his  necessary  witnesses  and  summon  them. 
(See  sees.  122  to  132.)  He  should  make  a  preliminary  examination 
of  the  witnesses  for  the  prosecution,  and,  as  far  as  possible,  systema- 
tize his  plans  for  conducting  the  case.  Prior  to  the  trial,  he  shall, 
for  the  convenience  of  the  court,  place  upon  the  table  several  copies 
of  the  charges  and  specifications  on  which  the  accused  is  to  be  tried. 
The  judge  advocate  should  confer  with  the  accused  as  soon  as  prac- 
ticable after  the  latter  has  received  a  copy  of  the  charges  and  speci- 
fications. The  judge  advocate  should  scrupulously  avoid  even  the 
slightest  suggestion  to  the  accused  that  he  plead  guilty  to  anything 
charged  against  him.  He  should  inform  the  accused  that  he  is  en- 
titled to  counsel ;  that  he  may  have  a  reasonable  time  in  which  to 
prepare  his  defense ;  and  of  his  rights  in  regard  to  having  witnesses 
summoned  for  the  defense.  The  judge  advocate  should  inform  the 
accused  as  to  the  probable  witnesses  to  be  called  for  the  prosecu- 
tion, although  it  is  unnecessary  to  inform  him  as  to  the  testimony 
expected  from  them.  In  a  large  majority  of  cases  the  accused  will  not 
know  whether  he  wants,  or  needs,  counsel.  In  that  event  the  judge 


190  INSTRUCTIONS   FOE   COURTS  AND  BOARDS. 

advocate  should  explain  to  him  the  general  duties  of  counsel  for  the 
defense.  If,  in  discussing  the  case  with  the  accused,  it  develops 
that  he  might  have  any  good  defense  whatever,  discussion  of  the 
merits  of  the  case  should  be  terminated  at  once  and  the  accused  ad- 
vised to  secure  counsel.  Whenever  an  accused  has  secured  counsel, 
all  negotiations  by  the  judge  advocate  should  be  conducted  through 
that  counsel. 

254.  Duties  during  trial. — During  the  trial  the  judge  advocate  con- 
ducts the  case  for  the  Government.     He  executes  all  orders  of  the 
court ;  reads  the  convening  order ;  administers  the  oath  to  the  mem- 
bers, clerk,  stenographers,  and' interpreter;   arraigns  the  accused; 
examines  witnesses ;  supervises  and  is  responsible  for  the  keeping  of 
a  complete  and  accurate  record  of  the  proceedings. 

While  the  court  is  in  open  session  it  is  the  duty  of  the  judge 
advocate  to  advise  the  court  in  all  matters  of  form  and  of  law.  On 
every  occasion  when  the  court  demands  his  opinion,  he  is  bound  to 
give  it  freely  and  fully ;  and,  even  when  it  is  not  requested,  to  caution 
the  court  against  any  deviation  from  essential  form  in  its  proceed- 
ings, or  against  any  act  or  ruling  in  violation  of  law  or  material  jus- 
tice. The  accused  and  his  counsel  have  a  right  to  the  opinion  of  the 
judge  advocate,  in  or  out  of  court,  upon  any  question  of  law  arising 
out  of  the  proceedings.  The  judge  advocate  shall  acquaint  himself 
with  the  rules  of  evidence,  and  apply  them  in  determining  the 
admissibility  of  evidence.  He  shall  offer  only  such  evidence  as  is 
properly  admissible.  When  in  doubt,  he  shall  offer  the  evidence. 
The  judge  advocate  is  particularly  to  object  to  the  admission  of  im- 
proper evidence,  and  he  shall  point  out  to  the  court  the  irrelevancy 
of  any  evidence  that  may  be  adduced  which  does  not  bear  upon  the 
matter  under  investigation.  Should  the  advice  of  the  judge  advo- 
cate be  disregarded  by  the  court,  he  shall  be  allowed  to  enter  his 
opinion  upon  the  record.  Under  such  circumstances  it  is  also  proper 
for  the  court  to  record  the  reasons  for  its  decision.  The  minutes  of 
opinion  and  decision  are  made  for  the  information  of  the  reviewing 
authority,  who  should  have  the  error,  on  whichever  side  it  may  be 
found,  brought  fairly  under  his  consideration ;  but  neither  the  judge 
advocate,  the  accused,  nor  any  member  of  the  court  has  any  right  to 
enter  an  exception  or  protest  on  the  record. 

255.  To  protect  interests  of  accused  who  does  not  have  counsel. — In  the 
event  that  the  accused  has  no  counsel  the  judge  advocate  shall  pro- 
tect his  interests,  having  in  mind,  however,  at  all  times  his  duties 
as  prosecutor.    Under  such  circumstances  he  shall  not  fail  to  advise 
the  accused  against  advancing  anything  which  may  tend  either  to 
criminate  him  or  prejudice  his  cause;  he  shall  see  that  no  illegal 
evidence  is  brought  against  the  accused,  and  shall  assist  him  in  pre- 


INSTRUCTIONS  FOR  COURTS  AND  BOARDS.  191 

senting  to  the  court  in  proper  form  the  facts  upon  which  his  de- 
fense is  based,  including  such  evidence  as  there  may  be  in  extenuation 
or  in  mitigation  as  well  as  evidence  of  previous  good  conduct  and 
character. 

256.  He  shall  not  "  try  case  out  of  court." — The  judge  advocate  shall 
not  usurp  the  functions  of  the  court  by  weighing  evidence  outside  of 
court  and  advising  the  court  to  accept  a  plea  of  guilty  in  a  less  degree 
than  charged ;  or  by  weighing  the  evidence  in  the  case  as  shown  by  the 
original  papers   and   withholding  evidence  which   should   be  sub- 
mitted to  the  court  for  its  consideration.     (See  C.  M.  O.  1,  1914,  0; 
29,  1914,  6;  and  42,  1915,  7-8.) 

257.  Procedure  of  court  in  case  of  the  absence  of  the  judge  advocate. — 
The  temporary  absence  of  the  judge  advocate  at  any  time  during  the 
progress  of  the  trial  does  not  invalidate  the  proceedings ;  but,  as  the 
court  has  no  authority  to  detail  any  person  to  act  as  judge  advocate, 
it  must,  in  case  of  his  incapacity,  adjourn  from  day  to  day  until  he 
is  able  to  resume  his  duty  or  a  successor  is  appointed  by  the  convening 
authority. 

258.  Judge  advocate  not  to  be  present  during  closed  court. — The  court 
may  go  into  closed  session  for  the  consideration  of  any  matter  com- 
ing before  it,  and  always  does  so  during  the  consideration  of  the 
finding  and  sentence.    When  the  court  is  to  be  cleared,  the  president 
so  announces,  and  all  persons,  including  the  accused,  his  counsel,  and 
the  judge  advocate,  withdraw.     But  the  judge  advocate  is  called 
before  the  closed  court  to  record  the  findings  and  again  to  record  the 
sentence ;  also  under  the  circumstances  stated  in  section  363. 

259.  To  report  delays  in  trials. — The  judge  advocate  shall  report  to 
the  convening  authority  all  cases,  with  the  reasons  for  the  delay,  in 
wThich  the  accused  is  not  brought  to  trial  within  10  days  after  the 
charges  and  specifications  have  been  received  by  the  judge  advocate. 
(In  this  connection  see  C.  M.  O.  20, 1915,  8.) 

COUNSEL  FOR  THE  JUDGE  ADVOCATE. 

260.  Detailed  or  authorized  by  convening  authority. — In  order  that  a 
counsel  for  the  judge  advocate  may  have  standing  before  a  court,  it  is 
necessary  that  he  be  detailed  or  authorized  by  .the  convening  author- 
ity.   (See  C.  M.  O.  41, 1915, 10-11.) 

261.  Privileges  of. — If  counsel  be  detailed  or  authorized  by  the  con- 
vening authority  to  assist  the  judge  advocate,  the  court  shall  give" 
him  equal  facilities  with  the  counsel  for  the  accused  in  the  perform- 
ance of  his  duties. 

262.  Not  subject  to  challenge.— See  section  252. 


192  INSTRUCTIONS  F.OR  COURTS  AND  BOARDS. 

ACCUSED. 

263.  To  be  present  in  open  court. — Except  as  noted  in  the  succeeding 
section  the  accused  should  be  present  during  all  the  proceedings  of  a 
court-martial  held  in  open  court.     If  for  any  reason  it  is  desired 
to  call  the  judge  advocate  before  the  court,  while  it  is  closed  for 
deliberation,  to  advise  it,  the  accused  should  also  be  present  and  the 
court  should  be  opened.     (See  C.  M.  O.  51,  1914,  1-2;  6,  1915,  6;  41, 
1915,  10;  49,  1915,  14.) 

264.  Where  the  accused  escapes. — Where  the  accused  in  a  case  on 
trial  effects  an  escape  and  disappears  he  may  properly  be  held  to  have 
waived  his  defense  and  the  court  may  proceed  with  the  trial  (receiv- 
ing evidence  from  the  prosecution)  to  a  finding  and  sentence. 

COUNSEL  FOB  THE  ACCUSED. 

265.  Accused  entitled  to  counsel. — The  accused  is  entitled  to  counsel 
as  a  right,  and  the  court  can  not  properly  deny  him  the  assistance  of 
a  professional  or  other  adviser.     Enlisted  men  to  be  tried  shall  be 
particularly  advised  of  their  rights  in  the  premises,  and  should  be 
represented  by  counsel,  if  practicable,  unless  they  explicitly  state  that 
they  do  not  desire  such  assistance.    Permission  to  address  the  court 
should  be  granted  by  the  court  to  counsel  for  the  accused,  and  the 
latter  should  be  allowed  to  use  all  legal  means  to  protect  the  interests 
of  the  accused,  but  shall  not  be  permitted  to  interfere  in  any  man- 
ner with  the  court's  proceedings. 

266.  Officer  detailed  as  counsel. — When  the  accused  has  no  legal 
adviser,  the  commandant  of  the  navy  yard  or  station,  the  com- 
mander in  chief,  or  the  senior  officer  present  within  whose  jurisdic- 
tion the  court  sits  shall,  if  the  accused  so  requests,  detail  a  suitable 
officer  to  act  as  his  counsel.    If  there  be  no  such  officer  available,  the 
fact  shall  be  reported  to  the  convening  authority  for  action.     An 
officer  so  detailed  shall  perform  such  duties  as  usually  devolve  upon 
the  counsel  for  the  defense  before  civil  courts  in  criminal  cases.    As 
such  counsel,  he  shall  use  all  legal  means  to  protect  the  interests  of 
the  accused  and  to  present  to  the  court  such  defense  as  the  accused 
may  have. 

267.  In  case  request  of  accused  for  certain  person  to  act  as  counsel  is 
refused. — Sometimes  the  request  of  the  accused  to  have  a  certain  per- 

^  son  act  as  counsel  is  refused  for  cause  and  some  one  else  is  appointed. 
Under  such  circumstances  the  record  should  always  show  the  grounds 
for  refusing  the  original  request  of  the  accused.  Wherever  prac- 
ticable, the  accused  should  be  allowed  such  person  as  he  requests  for 
counsel. 


INSTRUCTIONS  FOR  COURTS  AND  BOARDS.  193 

268.  Absence  of  counsel  for  the  accused. — If  the  counsel  for  the 
accused  be  absent,  the  record  should  show  affirmatively  that  the 
accused  waived  the  privilege  of  having  counsel  present  during  fur- 
ther proceedings. 

CLERK,  STENOGRAPHER,  AND  INTERPRETER. 

269.  Must  be  sworn. — With  the  sanction  of  the  convening  authority, 
a  court-martial  may  avail  itself  of  the  services  of  a  clerk,  stenog- 
rapher, or  interpreter,  but  such  person  or  persons  shall  in  all  cases 
be  sworn. 

270.  Clerical   assistance. — In   all   trials  by   general   court-martial, 
where  practicable  and  necessary,  the  convening  authority  shall  direct 
that  clerical  assistance  be  furnished.     In  cases  where  there  is  no 
competent  stenographer  assigned  to  the  court,  it  may  require  that 
all  communications,  motions,  and  questions  be  reduced  to  writing 
and  read  to  the  court. 

Wherever  practicable,  the  convening  authority  shall  direct  the 
senior  officer  present  at  the  place  where  the  court  is  to  meet  to  detail 
clerical  assistance  from  either  the  enlisted  or  civilian  personnel  under 
his  jurisdiction.  (See  p.  869.) 

When  necessary,  the  convening  authority  may  authorize  the  judge 
advocate  to  employ  clerical  assistance  at  market  rates  or  less  for 
stenographic  reporting.  In  such  cases  an  agreement  is  drawn  up  in 
duplicate  between  the  judge  advocate  and  the  stenographer.  One 
copy  of  this  agreement  is  retained  by  the  stenographer  and  the  other 
is  forwarded  by  the  judge  advocate  to  the  Bureau  of  Supplies  and 
Accounts,  via  the  Judge  Advocate  General,  together  with  bills  for 
clerical  assistance  rendered  in  accordance  therewith.  (See  pp.  369- 
370.) 

271.  Interpreter. — The  services  of  an  interpreter,  where  necessary, 
are  secured  in  the  same  manner  as  is  clerical  assistance. 

272.  Expense  to  the  Government  must  be  authorized. — No  expense  to 
the  Government  by  the  employment  of  a  clerk,  stenographer,  in- 
terpreter, or  other  person  to  assist  in  a  trial  by  general  court-martial 
should  be  allowed  by  the  court,  except  when  authorized  by  the  con- 
vening authority. 

273.  Not  present  in  closed  court. — The  clerk,  stenographer,  and  inter- 
preter, if  needed,  should  be  present  when  the  court  is  open,  but 
should  not  be  allowed  to  be  present  in  closed  court. 

THE  PROVOST  MARSHAL,  GUARD,  AND  ORDERLIES. 

274.  Provost  marshal. — An  officer  of  the  Navy  not  above  the  grade 
of  lieutenant,  or  an  officer  of  the  Marine  Corps  not  above  the  grade 


194  INSTRUCTIONS   FOR  COURTS  AND  BOARDS. 

of  captain,  shall,  upon  proper  application  by  the  judge  advocate  of  a 
general  court-martial,  be  detailed  by  the  commandant  of  the  station 
or  the  senior  officer  present  to  serve  as  provost  marshal  of  the  court. 
In  case  of  the  trial  of  a  petty  officer  or  a  person  of  inferior  rating 
of  the  Navy,  or  a  noncommissioned  officer,  musician,  or  private  of 
marines,  the  provost  marshal  may  be  either  a  petty  officer  of  the 
Navy  or  a  noncommissioned  officer  of  marines. 

275.  Duties  of. — When  an  accused  in  close  confinement  or  arrest  is 
to  be  brought  before  the  court,  the  order  is  sent  by  the  president  of 
the  court  to  the  accused's  immediate  commanding  officer,  through  the 
provost  marshal,  who  is  responsible  for  such  person  in  transit  to  and 
from  the  place  of  confinement  and  for  his  safe  return  to  the  proper 
custody  when  his  presence  is  not  required  by  the  court.    The  accused 
should  not  be  brought  before  the  court  in  irons,  unless  there  is  good 
reason  to  believe  that  he  will  attempt  to  escape  or  to  conduct  himself 
in  a  violent  manner;  but  the  fact  that  an  accused  has  been  tried  in 
irons  can  not,  in  any  case,  affect  the  validity  of  the  proceedings. 

Besides  the  above  duties,  the  provost  marshal  serves  notices  to  the 
witnesses  and  is  in  attendance  generally  as  police  officer  of  the  court. 

276.  Guard  and  orderlies. — At  the  request  of  the  judge  advocate,  the 
necessary  guard  and  orderlies  are  detailed  by  the  commanding  officer 
of  the  ship  or  commandant  of  the  yard  or  station  on  board  of  or  at 
which  the  court  is  ordered  to  convene. 

CHALLENGE. 

277.  Right  of  challenge. — The  accused  and  the  judge  advocate  have 
the  mutual  right  of  challenge.    It  is  the  duty  of  the  judge  advocate 
to  ask  the  accused  if  he  objects  to  any  member  of  the  court  appointed 
to  try  him,  and  a  minute  of  this  inquiry  and  the  answer  thereto  is 
invariably  to  be  entered  on  the  record.    As  a  general  rule,  whatever 
objection  either  party  may  make  to  any  member  shall  be  decided  upon 
before  the  court  is  sworn,  but  at  any  stage  of  the  proceedings  prior 
to  the  findings  challenges  may  be  made,  either  by  the  judge  advocate 
or  the  accused,  for  cause  not  previously  known.     It  is  customary, 
though  not  required,  that  a  member  objected  to  should  withdraw, 
after  offering  such  explanations  as  he  may  believe  necessary,  and  the 
court  shall  then  be  cleared  and  proceed  to  deliberate  and  decide  upon 
the  validity  of  the  objection.    The  objection,  the  cause  assigned,  the 
statement,  if  any,  of  the  challenged  member,  and  the  decision  of  the 
court  shall  be  regularly  and  specifically  entered  on  the  record. 

278.  What  constitutes  a  valid  challenge. — A  positive  declaration  by 
the  challenged  member  that  he  is  not  prejudiced  against  the  accused, 
nor  interested  in  the  case,  is  ordinarily  satisfactory  to  the  accused, 
and,  in  the  absence  of  material  evidence  in  support  of  the  objection, 


INSTRUCTIONS  FOR  COURTS  AND  BOARDS.  195 

will  justify  the  court  in  overruling  it.  If,  however,  the  statement 
is  unsatisfactory  or  the  member  makes  no  response,  the  accused  may 
offer  testimony  in  support  of  his  objection  or  may  subject  the  chal- 
lenged member  to  an  examination  by  interrogatories.  Courts  should 
be  liberal  in  passing  upon  challenges,  but  they  will  not  entertain  an 
objection  that  is  not  specific  or  upon  the  mere  assertion  of  the  accused, 
if  it  is  not  admitted  by  the  challenged  member.  A  challenge  upon 
the  ground,  admitted  or  proven,  that  a  member  preferred  the  charges 
or  is  a  material  witness  in  support  thereof,  or  that  he  has  investigated 
the  charges  and  expressed  the  opinion  that  they  can  be  established, 
should  be  sustained  by  the  court. 

279.  Court  decides  on  challenges. — In  the  case  of  challenge,  the  deci- 
sion of  the  court  is  final,  and  the  party  wTho  challenges  can  not  insist 
upon  his  challenge  in  opposition  to  the  decision  of  the  court.    Mem- 
bers of  courts  are  liable  to  challenge  at  the  beginning  of  each  distinct 
trial. 

280.  Examination  on  challenge  may  be  on  voir  dire. — An  examination 
on  a  challenge  may  be  under  oath  on  voir  dire.    See  section  289. 

281.  When  member,  not  challenged,  considers  himself  disqualified. — 
The  court  of  itself  can  not  excuse  a  member  in  the  absence  of  a  chal- 
lenge.    An  unchallenged  member,  who  thinks  himself  disqualified, 
can  be  relieved  only  by  application  to  the  convening  authority. 

282.  When  court  is  reduced,  by  challenge,  below  legal  quorum. — If,  by 
challenges  sustained,  a  court  is  reduced  below  the  legal  quorum,  the 
convening  authority  should  be  notified  as  soon  as  practicable  and  the 
court  adjourned  awaiting  the  appointment  of  new  members  by  the 
convening  authority.    A  copy  of  the  communication  notifying  that 
authority  of  the  adjournment  and  the  reasons  therefor  must  be  ap- 
pended to  the  record. 

OATHS. 

283.  When  court  is  sworn. — Until  a  court  is  duly  sworn  (organized) 
according  to  law,  it  is  incompetent  to  perform  any  judicial  act  except 
to  hear  and  determine  challenges  against  its  members.     After  the 
right  of  challenge  has  been  accorded  and  questions  arising  thereon 
have  been  decided,  the  oath  or  affirmation  prescribed  by  law  shall  be 
administered  in  the  presence  of  the  accused:  (a)  By  the  president 
of  the  court  to  the  judge  advocate,  (6)  by  the  judge  advocate  to  the 
members  of  the  court,  clerk  (stenographer),  and  interpreter,  and  the 
record  will  so  show. 

284.  To  the  judge  advocate.—"  You,  A.  B.,  do  swear  (or  affirm)  that 
you  will  keep  a  true  record  of  the  evidence  given  to}  and  the  proceed- 
ings of,  this  court ;  that  you  will  not  divulge  or  by  any  means  disclose 


196  INSTRUCTIONS  FOR  COURTS  AND  BOARDS. 

the  sentence  of  the  court  until  it  shall  have  been  approved  by  the 
proper  authority;  and  that  you  will  not  at  any  time  divulge  or  dis- 
close the  vote  or  opinion  of  any  particular  member  of  the  court, 
unless  required  so  to  do  before  a  court  of  justice  in  due  course  of 
law."  (A.  G.  N.,  40.) 

285.  To  members.—"  You,  A.  B.,  C.  D.,  E.  F.,  etc.,  do  each  and  sev- 
erally swear  (or  affirm)  that  you  will  truly  try  without  prejudice  or 
partiality,  the  case  now  depending,  according  to  the  evidence  which 
shall  come  before  the  court,  the  rules  for  the  government  of  the  Navy, 
and  your  own  consciences ;  that  you  will  not  by  any  means  divulge  or 
disclose  the  sentence  of  the  court  until  k  shall  have  been  approved 
by  the  proper  authority;  that  you  will  not  at  any  time  divulge  or 
disclose  the  vote  or  opinion  of  any  particular  member  of  the  court, 
unless  required  so  to  do  before  a  court  of  justice  in  due  course  of  law." 
(A.  G.  N.,  40.) 

286.  To  the  stenographer  (clerk). — "  You,  A.  B.,  swear  (or  affirm) 
faithfully  to  perform  the  duty  of  stenographer  (clerk)  in  aiding  the 
judge  advocate  to  take  and  record  the  proceedings  of  the  court,  either 
in  shorthand  or  ordinary  manuscript." 

287.  To  the  interpreter. — "  You,  A.  B.,  swear  (or  affirm)  faithfully 
and  truly  to  interpret  or  translate  in  all  cases  in  which  you  shall  be 
required  so  to  do  between  the  United  States  and  the  accused." 

288.  To  witnesses. — An  oath  or  affirmation  in  the  following  form 
shall  be  administered  to  all  witnesses  before  any  court-martial  by 
the  president  thereof : 

"  You  do  solemnly  swear  (or  affirm)  that  the  evidence  you  shall 
give  in  the  case  now  before  this  court  shall  be  the  truth,  the  whole 
truth,  and  nothing  but  the  truth,  and  that  you  will  state  everything 
within  your  knowledge  in  relation  to  the  charges.  So  help  you,  God 
(or,  this  you  do  under  the  pains  and  penalties  of  perjury)."  (A. 
G.  N.,  41.) 

289.  Oath  on  voir  dire. — "You,. A.  B.,  swear  (or  affirm)  that  you 
will  true  answers  make  to  questions  touching  your  (the)  competency 

(of )  as  a  witness  (member  of  the  court)  in  this  case. 

So  help  you  God  (or,  this  you'  do  under  the  pains  and  penalties  of 
perjury)."    (See  sees.  137  and  280.) 

290.  Manner  of  giving  oath. — The  usual  manner  of  giving  an  oath 
is- to  require  the  party  taking  same  to  keep  one  hand  upon  a  Bible 
while  doing  so.     But  it  is  not  to  be  forgotten  that  the  purpose  of 
administering  an  oath  is  to  impress  the  party  being  sworn  with  the 
solemnity  of  the  ceremony,  and,  therefore,  such  ceremony  may  be 
undergone  in  giving  the  oath  to  a  witness  as  may  be  recognized  by 
whatever  religious  sect  of  which  he  happens  to  be  a  member. 


INSTRUCTIONS  FOR  COURTS  AND  BOARDS.  197 

POSTPONEMENT. 

291.  Suspension  of  proceedings. — Either  the  judge  advocate  or  the 
accused  may  request  a  postponement  of  the  trial,  stating  his  reasons 
for  the  request.    But  an  application  to  suspend  the  proceedings  of  a 
court  for  a  longer  period  than  from  day  to  day,  Sundays  excepted, 
must  be  referred  to  the  officer  convening  the  court,  who  alone  has 
authority  to  grant  such  request.     (See  A.  G.  N.  45.) 

ARRAIGNMENT.  ' 

292.  Arraignment. — After  the  court  has  been  organized,  and  both 
parties  are  ready  to  proceed,  the  judge  advocate  will  read  the  charges 
and  specifications  separately,  and  in  order,  to  the  accused  and  ast  him 
how  he  pleads  to  each,  "guilty"  or  "not  guilty."    The  order  pur- 
sued in  case  of  several  charges  or  specifications  will  be  to  arraign  on 
the  first,  second,  etc.,  specifications  to  the  first  charge,  then  on  the 
first  charge,  and  so  on  with  the  rest. 

293.  On  trials  in  joinder. — When  two  or  more  persons  are  tried  in 
joinder,  they  should  be  separately  arraigned ;  the  questions  constitut- 
ing each  arraignment  and  the  answers  thereto  should  be  separately 
recorded;  and  throughout  the  trial  the  accused  persons  should  sev- 
erally be  given  the  same  opportunity  to  answer,  plead,  make  objec- 
tions, examine,  be  examined,  submit  a  written  defense  or  statement, 
etc.,  and  the  fact  should  in  every  instance  be  entered  upon  the  record 
with  the  same  particularity  as  in  the  ordinary  case  of  the  trial  of  one 
person  only. 

PRELIMINARY  MOTIONS. 

294.  When  made. — The  accused,  either  himself  or  through  counsel, 
may,  before  pleading  to  the  issue,  make  a  preliminary  motion  or  plea. 

295.  Form  of. — Such  motion  should  ordinarily  be  in  the  form  of  a 
motion  "  to  strike  out,"  but  the  substance  and  not  the  form  of  the 
motion  is  what  is  to  be  considered.    It  may  be  upon  various  grounds, 
the  purpose  being  to  substitute  the  same  in  naval  procedure  for  the 
technical  pleadings  known  to  civil  procedure.    Thus,  it  may  be  on  the 
ground  of— 

296.  A  lack  of  jurisdiction. — An  objection  on  the  ground  of  lack  of 
jurisdiction  involves  a  question  as  to  the  legal  authority  of  the  court, 
such  as: 

(a)  That  it  was  convened  by  an  officer  having  no  legal  authority 
to  convene  it.     (See  art.  38,  A.  G.  N.,  and  statutory  enactments 
quoted  thereunder.) 

(b)  That  it  is  not  legally  cpnstituted.     (See  sees.  219;  224.) 


198  INSTRUCTIONS  FOR  COURTS  AND  BOARDS. 

(c)  That  the  accused  is  not  subject  to  the  court's  jurisdiction. 
(See  sec.  25.) 

(d)  That  the  offense  is  not  one  cognizable  by  naval  court-martial. 
(See  sec.  26;  see  also  CM.  O.  31,  1915,  6-10;  9,  1916,  5-6;  17, 
1916,  5-8.) 

Even  though  the  accused  fails  to  make  objection  to  the  jurisdiction 
of  a  court,  and  it  be  found  upon  reviewing  a  case  that  the  court  did 
for  any  reason  lack  jurisdiction,  the  defect  is  fatal  and  the  findings 
and  sentence  of  the  cour.t  must  be  set  aside.  (See  C.  M.  O.  IT,  1916, 
5_8.)  Waiver  of  objection  will  never  avail  to  confer  jurisdiction 
upon  a  court  not  legally  possessing  it.  (See  sec.  28;  C.  M.  O.  31, 
1915,  6-10;  and  on  subject  of  jurisdiction  generally  Ch.  IV.) 

297.  The  expiration  of  the  statutory  period  of  limitation. — The  statute 
of  limitations,  as  affecting  persons  subject  to  trial  by  naval  courts- 
martial,  is  contained  in  articles  61  and  62,  A.  G.  N.  (See  p.  44.) 

Article  61,  A.  G.  N.,  which  fixes  the  limitation  for  proceedings  in 
the  cases  of  general  offenses,  excepts  from  its  terms  an  offender  who 
has  not  been  amenable  to  justice  during  the  statutory  period  "by 
reason  of  having  absented  himself,  or  for  some  other  manifest  impedi- 
ment." Article  62,  A.  G.  N.,  which  fixes  the  limitation  for  desertion 
in  time  of  peace,  excepts  an  offender  who  "shall  meanwhile  have 
absented  himself  from  the  United  States,  or  by  reason  of  some  other 
manifest  impediment "  shall  not  have  been  so  amenable.  For  a  con- 
struction of  the  language  of  the  above  exceptions  see  C.  M.  O.  27, 
1913,  16-18. 

The  above  articles  do  not  operate  to  extinguish  the  offenses  in  cases 
where  they  apply,  but  merely  give  the  accused  in  such  cases  a  defense 
against  trial  therefor.  It  consequently  follows  that  the  burden  falls 
upon  the  accused  in  every  case  in  which  he  desires  to  avail  himself 
of  these  articles,  in  addition  to  establishing  that  he  comes  within 
.the  provisions  of  same,  to  affirmatively  establish  that  he  is  not 
within  the  above  exceptions.  Inasmuch  as  these  statutes  of  limita- 
tions are  matters  of  defense  only,  they  may  be  waived  by  the  accused. 

A  plea  of  guilty  operates  as  such  a  waiver.  But -it  is  not  impera- 
tive that  the  accused,  in  order  to  avail  himself  of  this  defense,  do  so 
by  means  of  a  preliminary  motion  to  strike  out ;  the  limitation  may 
equally  be  taken  advantage  of,  under  a  plea  of  not  guilty,  by  estab- 
lishing this  defense  by  evidence  during  the  trial. 

The  fact  that  an  accused  offers  as  a  defense  the  statute  of  limita- 
tions in  no  way  challenges  the  jurisdiction  of  a  court-martial  to  hear 
and  determine  the  matter,  but  goes  to  the  merits  of  the  case,  and  is 
a  matter  to  be  determined  by  the  court  in  the  exercise  of  its  juris- 
diction. The  court-martial  has  final  determination  of  the  question 
and  its  decision  thereon  is  not  reviewable  in  habeas  corpus  pro- 
ceedings in  the  civil  courts.  (Ex  parte  Townsend,  133  Fed.  Rep., 


INSTRUCTIONS  FOR   COURTS  AND  BOARDS.  199 

74.)  On  the  whole  subject  of  statute  of  limitations  see  C.  M.  O.  27, 
1913, 13-18. 

298.  Former  jeopardy. — The  fifth  amendment  to  the  Constitution  of 
the  United  States  provides  that  no  person  shall  "  be  subject  for  the 
same  offense  to  be  twice  put  in  jeopardy  of  life  or  limb."  This  pro- 
vision is  the  authority  for  the  principle  of  law  that  no  person  shall 
be  tried  a  second  time  for  the  same  offense.  In  order,  however,  that 
a  person  on  trial  before  a  court  martial  may  be  given  the  benefit  of 
this  principle,  it  is  necessary  that  he  should  have  been  actually 
acquitted  or  convicted  on  a  former  trial.  That  is,  the  former  trial, 
on  which  an  accused  claims  to  have  been  placed  in  jeopardy,  must 
have  proceeded  to  a  final  acquittal  or  conviction  hi  order  to  consti- 
tute former  jeopardy.  (C.  M.  O.  7,  1914,  5;  22,  1916,  6.)  But, 
after  the  proceedings  in  a  former  trial  have  been  carried  to  an  acquit- 
tal or  conviction,  the  jeopardy  is  complete  and  it  matters  not  whether 
any  action,  or,  if  any,  what  action  has  been  taken  upon  the  pro- 
ceedings by  the  reviewing  authority. 

Proceedings  upon  a  "  fatally  defective  "  specification  do  not  con- 
stitute former  jeopardy.  (C.  M.  6.  22,  1916,  6-8.) 

Likewise,  before  there  can  be  former  jeopardy  the  court  before 
which  the  former  proceedings  have  been  conducted  must  have  been  a 
duly  constituted  and  legally  competent  court.  (See  C.  M.  O.  7,  1914, 
8-9;  and  31,  1914,  1-2;  holding  that  the  commanding  officer  of  a 
naval  vessel  in  imposing  punishments  is  not  a  court.) 

Also,  the  term  "  same  offense  "  does  not  mean  the  same  act.  The 
same  act  may  be  an  offense  against  more  than  one  Government,  as, 
for  example,  when  one  enlisted  man  assaults  another  within  the  ter- 
ritory of  one  of  the  States,  it  is  an  offense  both  against  that  State 
and  against  the  United  States.  Moreover,  the  same  act  may  be  an 
offense  against  civil  law  and  at  the  same  time  a  separate  and  distinct 
offense  against  naval  law.  (Moore  v.  Illinois,  14  How.,  20 ;  Coleman 
v.  Tennessee,  97  U.  S.,  509.)  In  this  connection  see  section  27. 

When  a  person  has  been  once  acquitted  or  convicted  by  a  court  of 
a  certain  offense,  he  is  not  subject  to  trial  subsequently  for  a  minor 
offense  included  therein.  Likewise,  when  once  tried  for  a  minor 
offense  an  accused  can  not  later  be  tried  for  a  major  offense  of  which 
it  is  a  part,  because  to  so  do  would  be  to  twice  place  him  in  jeopardy 
for  the  minor  offense.  Thus,  desertion  includes  absence  without 
leave,  and  one  having  been  acquitted  or  convicted  of  the  former  is 
not  subject  to  later  trial  for  the  latter  for  the  same  act,  and  vice  versa. 

In  order  that  an  accused  may  avail  himself  of  the  defense  of  former 
jeopardy,  he  must  take  advantage  of  the  same  and  move  to  strike 
out  on  this  ground.  If  he  waives  it,  the  court  will  proceed  with  the 
case.  When  he  wishes  to  avail  himself  of  it,  the  production  of  the 
record  of  the  former  trial  is  the  proper  way  to  sustain  such  objection. 


200  INSTRUCTIONS  FOR  COURTS  AND  BOARDS'. 

299.  A  pardon, — A  pardon,  granted  by  one  having  legal  authority 
to  do  so,  exempts  the  individual  on  whom  it  is  bestowed  from  the 
punishment  which  the  law  inflicts  for  a  crime  that  he  has  committed, 
and  may  be  offered  in  evidence  to  sustain  a  motion  to  strike  out. 

300.  Procedure  after  a  preliminary  motion. — A  preliminary  motion  to 
strike  out,  the  grounds  therefor,  and  evidence  introduced  both  in 
support  and  against  the  motion  should  be  fully  entered  in  the  record. 
If  the  motion  be  sustained,  an  extract  of  the  proceedings  of  the 
court  shall  be  forwarded  to  the  convening  authority  and  the  court 
will  meet  from  day  to  day  awaiting  further  instructions  from  the 
convening  authority,  who  may  either  accept  the  court's  ruling  and 
direct  that  the  prosecution  on  the  matter  involved  be  discontinued 
or  may  return  the  record  to  the  court  for  a  reconsideration  in  the 
premises,  with  a  statement  of  reasons  therefor. 

PLEAS  TO  THE  ISSUE. 

301.  Pleas  to  the  issue. — After  preliminary  motions,  if  any,  have 
been  disposed  of,  and  if  the  trial  is  to  proceed,  the  accused  next 
pleads  to  the  issue.     Ordinarily  the  accused  should  enter  a  plea  of 
"  guilty  "  or  "  not  guilty  "  to  the  specifications  under  each  charge  and 
then  to  the  charge  itself.    This  is  known  as  a  plea  to  the  general  issue. 
By  a  plea  of  "  guilty  "  the  accused  admits,  without  proof,  the  aver- 
ments of  the  charges  and  specifications.    A  plea  of  "  not  guilty,"  on 
the  other  hand,  calls  upon  the  prosecution  to  prove  the  averments  of 
the  charges  and  specifications.     It  does  not,  however,  commit  the 
accused  to  a  denial  of  the  facts  alleged  therein.    An  accused  may  well 
know  that  all  the  material  averments  against  him  are  true,  and  yet 
may  properly  and  without  color  of  deception  enter  a  plea  of  "  not 
guilty." 

302.  "  Guilty  in  a  less  degree  than  charged.  "--This  plea  is  not  looked 
upon  with  favor.     Save  in  exceptional  cases,  a  court-martial  should 
try  the  accused  for  the  offense  as  charged,  and  the  judge  advocate 
should  produce  all  the  available  evidence.     The  acceptance  of  this 
plea  by  the  court  upon  the  advice  of  the  judge  advocate  ordinarily 
indicates  that  the  case  has  been  tried  out  of  court  by  the  judge  advo- 
cate, who  has  thereby  been  allowed  to  usurp  the  court's  functions. 
(See  C.  M.  O.  29, 1914,  6-7.) 

303.  Plea  of  nolo  contendere. — In  proceedings  before  a  court-martial 
there  is  no  difference  in  legal  effect  between  a  plea  of  nolo  contendere 
and  a  plea  of  "  guilty."     The  distinction  lies  in  that  such  a  plea  can 
not  be  used  against  the  accused  as  an  admission  of  guilt  in  a  civil 
suit  for  the  same  act.     The  necessity  for  the  use  of  this  plea  before 
a  court-martial  should  be  rare.     (In  this  connection  see  C.  M.  O.  26, 
1910  5-7  ) 


INSTRUCTIONS   FOR   COURTS  AND  BOARDS.  201 

304.  "  Guilty  but  without  criminality." — A  plea  to  this  effect  is  con- 
tradictory on  its  face,  as  guilt  can  not  be  disassociated  from  crim- 
inality, and  is  therefore  irregular  and  should  not  be  accepted. 

305.  Accused  stands  mute. — If  the  accused  for  any  reason  stands 
mute,  the  court  shall  direct  the  trial  to  proceed  as  if  he  had  pleaded 
"  not  guilty." 

306.  Procedure  on  plea  of  guilty. — Should  the  accused  plead  either 
"  guilty  "  or  "  guilty  in  a  less  degree  than  charged,"  and  should  such 
plea  be  accepted,  the  president  shall  warn  him  that  he  thereby  pre- 
cludes himself  from  the  benefits  of  a  regular  defense  as  to  the  matter 
thus  admitted  and  ask  if  he  persists  in  such  plea. 

307.  Evidence  in  extenuation. — After  the  warning  referred  to  above, 
should  the  accused  persist  in  the  plea  of  guilty,  the  court,  before  pro- 
ceeding to  deliberate  and  determine  upon  the  sentence,  shall  allow 
him  to  urge  anything  he  may  desire  to  offer  in  extenuation  of  his 
conduct,  to  call  witnesses  as  to  character,  or  to  offer  any  other  evi- 
dence of  a  strictly  mitigating  nature;  and  the  judge  advocate  shall 
have  the  right  to  cross-examine  such  witnesses  and  should  introduce 
such  evidence  as  he  may  have  in  rebuttal  thereto.     (See  C.  M.  O.  39, 
1915;  see  also  sec.  214.) 

308.  Evidence  after  plea  of  guilty. — As  by  the  plea  of  guilty  every- 
thing alleged  is  admitted,  no  evidence  shall,  when  such  plea  is 
offered,  be  given  by  the  prosecution  except  as  noted  in  the  preced- 
ing section  or  where,  in  the  judgment  of  the  court,  such  a  course  be 
necessary  in  order  to  show  all  the  circumstances  of  the  offense,  in 
which  case  the  warning  referred  to  in  section  306  should  be  omitted. 

309.  Change  of  plea. — The  accused  may,  at  the  discretion  of  the 
court,  be  allowed  at  any  time  before  the  trial  is  finished  to  substitute 
for  a  plea  of  guilty,  or  guilty  iji  a  less  degree  than  charged,  a  plea  of 
not  guilty,  or  vice  versa. 

310.  Eejection  of  plea. — If,  after  a  plea  of  guilty  in  less  degree,  the 
court  decides  to  proceed  with  the  trial  of  the  accused  for  the  greater 
offense  with  which  he  is  charged,  such  plea  in  less  degree  will  be 
rejected  and  the  accused  advised  by  the  judge  advocate  to  substitute 
a  plea  of  not  guilty:     Should  the  accused  decline  to  plead  thus,  as 
advised,  the  court  should  direct  the  trial  to  proceed  as  if  the  plea  of 
not  guilty  had  been  entered,  and  the  prosecution  shall  be  put  to  the 
proof  of  every  allegation  contained  in  the  specification.    The  same 
procedure  shall  be  followed  if,  after  a  plea  of  guilty,  the  accused  sets 
up  matter  inconsistent  with  such  plea.    But  should  the  accused  de- 
sire to  admit  in  open  court  any  of  the  facts  alleged  in  the  specifica- 
tions against  him  he  may  do  so  after  having  made  a  general  plea  of 
not  guilty,  and  it  will  not  be  necessary  for  the  prosecution  to  prove 
the  admitted  facts.     (See  sec.  111.) 


202  INSTRUCTIONS  FOR  COURTS  AND  BOARDS. 

WITNESSES. 

(See  sections  122-177.) 

STATEMENT  OF  ACCUSED — ARGUMENTS  or  ACCUSED  AND 

JUDGE  ADVOCATE. 

311.  Accused  may  make  statement. — An  accused  may,  in  any  case 
where  he  so  desires,  make  a  statement  not  under  oath.     Such  state- 
ment of  the  accused  is  a  personal  defense  or  declaration  and  can  not 
legally  be  acted  upon  as  evidence  by  the  court,  nor  can  it  be  a  vehicle 
of  evidence,  or  properly  embrace  documents  or  other  writings  or  even 
averments  of  material  facts,  which,  if  duly  introduced,  would  be 
evidence ;  and  if  through  inadvertence  or  other  cause  such  be  improp- 
erly embraced  in  a  statement,  they   are  entitled  to  no  evidential 
weight. 

A  statement  may  operate  in  three  ways:  (1)  To  modify  the  plea 
of  the  accused  when  inconsistent  therewith  (see  sec.  312) ;  (2)  as  a 
summary  and  argument  for  the  defense,  which  may  be  considered  by 
the  court;  and  (3)  as  a  plea  for  leniency,  which  may  not  be  con- 
sidered by  the  court  except  in  recommending  the  accused  to  the 
clemency  of  the  reviewing  authority. 

It  is  irregular  and  improper  to  have  a  statement  sworn  to.  In 
order  to  bring  out  any  facts  or  averments  as  sworn  testimony  in  his 
defense,  it  is  necessary  that  the  accused  himself,  or  a  witness  in  his 
behalf,  regularly  take  the  stand  and  subject  himself  to  cross-examina- 
tion. 

312.  When  statement  is  inconsistent  with  the  plea  of  the  accused. — It 
sometimes  happens  that  an  accused,  unfamiliar  with  the  effect  of  his 
plea,  will  plead  guilty,  and,  without  the 'introduction  of  evidence,  will 
submit  to  the  court  a  statement  inconsistent  with  his  plea;  as,  for 
example,  when  an  accused,  charged  with  desertion,  pleads  guilty  and 
then  submits  a  statement  wherein  he  denies  that  he  had  at  any  time 
an  intention  permanently  to  abandon  the  service.     Upon  the  sub- 
mission of  such  a  statement,  the  procedure  outlined  in  section  310  will 
be  followed. 

313.  Arguments. — In  every  case  both  the  accused  (counsel)  and  the 
judge  advocate  shall  be  afforded  an  opportunity  to  present  an  argu- 
ment before  submitting  their  respective  cases  to  the  court.    The  judge 
advocate  is  always  entitled  to  the  closing  argument.     (See,  in  this 
connection,  C.  M.  O.  51,  1914,  3.) 

314.  Character    of    arguments. — A   reasonable    latitude    should    be 
allowed  the  judge  advocate  and  accused  (counsel)  in  their  closing 
arguments.    The  testimony  and  any  animus  on  the  part  of  witnesses, 


INSTRUCTIONS  FOR  COURTS  AND  BOARDS.  203 

the  conduct,  motives,  and  evidence  of  malice  on  the  part  of  those, 
upon  whose  complaint  the  accused  is  being  prosecuted,  may,  in  so  far 
as  it  is  based  upon  matters  disclosed  by  the  proceedings,  be  com- 
mented upon.  But  the  court  should  not  permit  such  argument  to  be 
made  the  vehicle  of  abuse  not  bearing  upon  the  merits  of  the  case  and 
not  supported  by  matters  contained  in  the  record. 

315.  When  statement  and  arguments  may  be  oral. — When  the  court 
has  the  services  of  a  competent  stenographer  the  statement  and  argu- 
ments may  be  oral.    When  so  made  they  are  entered  in  the  record  as 
a  part  of  the  proceedings. 

316.  When  statement  and  arguments  must  be  written. — Unless  the 
clerk  be  a  competent  stenographer  or  there  be  a  stenographer  detailed 
to  the  court,  the  statement  and  arguments  must  be  written  before  de- 
livery.   In  such  cases  the  statement  or  arguments  so  made  shall  be 
appended  to  the  record. 

317.  Oral  arguments  upon  the  admissibility  of  evidence  and  upon  inter- 
locutory proceedings. — Oral  arguments  upon  the  admissibility  of  evi- 
dence and  upon  interlocutory  proceedings  may  be  allowed,  but  shall 
not  be  recorded;  briefs  of  such  arguments,  if  prepared  at  his  own 
expense  and  subsequently  submitted  to  the  court  by  the  party  who 
made  the  same,  shall  be  appended  to  the  record. 

FINDINGS. 

318.  Method  of  arriving  at  findings. — The  court  is  closed  to  deliberate 
upon  its  findings.    In  arriving  at  same  the  plea  of  the  accused,  the 
evidence  adduced,  and  the  arguments  made,  are  to  be  carefully  con- 
sidered.   After  the  court  has  sufficiently  deliberated,  the  president  of 
the  court  shall,  upon  each  specification  of  each  charge,  beginning  with 
the  first,  put  the  question  whether  the  specification  is  "  proved,"  "  not 
proved,"  or  "  proved  in  part."    Each  member  shall  write  "  proved," 
"  not  proved,"  or  "  proved  in  part " — and  if  so,  what  part — over  his 
signature,  and  shall  hand  his  vote  to  the  president  of  the  court.    The 
latter,  after  he  has  received  all  the  votes  upon  each  specification, 
shall  read  them  aloud  without  disclosing  how  each  member  voted. 
Likewise,  after  the  members  have  voted  upon  all  the  specifications  of 
any  charge,  they  shall  in  the  same  manner  vote  as  to  whether  the 
accused  is  of  such  charge  "  guilty,"  "  not  guilty,"  or  "  guilty  in  a  less 
degree  than  charged  " — and  if  so,  in  what  degree.    No  written  minute 
of  the  votes  shall  be  preserved,  unless  so  ordered  by  the  unanimous 
vote  of  the  court.    The  decision  of  a  majority  becomes  the  finding  of 
the  court.     When  there  is  a  tie  vote  upon  any  of  the  findings,  the 
accused  is  given  the  benefit  thereof  and  the  result  is  recorded  in  that 
way  which  is  the  more  favorable  to  the  accused, 

26450°— 17 14 


204  INSTRUCTIONS  FOR  COURTS  AND  BOARDS. 

319.  When  accused  pleads  guilty. — When  the  accused  pleads  guilty, 
the  proper  finding  is,  for  the  specification,  "  proved  by  plea,"  and  for 
the  charge,  simply  "  guilty." 

320.  When  specification  is  found  "  proved  in  part." — The  court  may 
find  a  specification  "  proved  in  part,"  and  then,  if  the  specification 
still  supports  the  charge,  find  the  accused  guilty  of  the  charge.    (See, 
in  this  connection,  C.  M.  O.  38, 1916,  2.) 

321.  "  Guilty  in  a  less  degree  than  charged." — If  the  evidence  proves 
the  commission  of  an  offense  less  in  degree  than  that  specified,  yet 
included  in  it,  the  court  may  except  the  words  of  the  specification, 
substitute  others  instead,  pronouncing  what  words  are  not  proved 
and  what  words  are  proved,  and  then  find  the  accused  guilty  in  a  less 
degree  than  charged,  guilty  of  the  lesser  included  offense.    Of  this 
form  of  finding  the  most  familiar  example  is  the  finding  of  guilty  of 
"  absence  from  station  and  duty  without  leave  (or,  after  his  leave 
had  expired)"  upon  a  charge  of  "  desertion."    In  such  a  case,  in  its 
finding  of  "  proved  in  part "  upon  the  specification,  the  court  should 
expressly  except  the  words  "  desert "  and  "  in  desertion,"  and  sub- 
stitute therefor,  respectively,  the  words  "  absent  himself   without 
leave  "  and  "  so  absent,"  if  such  be  the  lesser  included  offense  found 
proved.    In  such  event  the  finding  upon  the  charge  should  be  "  guilty 
in  a  less  degree  than  charged,  guilty  of  absence  from  station  and 
duty  without  leave." 

322.  When  finding  is  "Not  guilty." — In  case  the  finding  is  "Not 
guilty  "  upon  any  charge,  the  explicit  statement  should  immediately 
follow  that  the  court  acquits  the  accused  of  such  charge. 

323.  Forms  of  acquittal. — The  following  forms  of  acquittal,  and  no 
others,  are  permitted  in  naval  procedure : 

"  The  court  does,  therefore,  acquit" — This  form,  known  as  a  simple 
acquittal,  should  be  used  in  all  cases  except  in  the  few  special  cases  to 
be  hereinafter  mentioned  under  other  forms  of  acquittal.  The  use 
of  this  form  sufficiently  records  the  fact  that  the  court  has  not  sus- 
tained the  charge  and  has  the  same  legal  effect  as  an  acquittal  ex- 
pressed with  some  embellishment. 

"  The  court  does,  therefore,  fully  acquit" — The  use  of  this  form  of 
acquittal  indicates  that  a  court  not  only  fails  to  find  a  charge  proved 
beyond  a  reasonable  doubt,  but  that  it  finds  no  facts  whatever,  as 
brought  out  by  the  evidence  introduced  in  the  case,  which  reflect  ad- 
versely on  the  conduct  of  the  accused  in  connection  with  matters  per- 
taining to  the  charge  and  specification.  In  other  words,  a  court 
should  not  "  fully  acquit "  in  cases  where  the  record  shows  any  un- 
controverted  facts  whatever  reflecting  upon  the  accused. 

"  The  court  does,  therefore,  honorably  acquit" — This  form  is  to  be 
employed  only  in  cases  where  the  offense  charged  is,  besides  being  an 


INSTRUCTIONS   FOR   COURTS   AND  BOARDS.  205 

offense  against  military  authority,  of  such  a  character  that  a  convic- 
tion thereof  would  tend  to  dishonor  the  accused,  such  as,  for  example, 
a  charge  of  "conduct  unbecoming  an  officer  and  a  gentleman."  This 
acquittal,  as  in  the  case  of  a  full  acquittal,  should  never  be  used  if  the 
record  shows  any  adverse  reflection  whatever  upon  the  accused. 

•"  The  court  does  ^therefore,  most  fully  and  honorably  acquit." — 
This  form  should  be  used  only  in  extreme  cases  in  which  not  only 
have  the  requirements  of  a  "  full "  and  "  honorable  "  acquittal  been 
fulfilled,  but  in  which  the  court  wishes  to  place  the  highest  stamp  of 
approval  upon  the  actions  of  the  accused  in  connection  with  matters 
covered  by  the  specifications.  The  use  of  this  form  of  acquittal 
might,  for  example,  be  justified  in  the  case  of  an  officer  charged  with 
unbecoming  conduct  in  battle  if  the  court  wished  to  make  it  a  matter 
of  record  that,  far  from  considering  the  conduct  of  such  officer  cen- 
surable, it  both  approved  and  commended  his  conduct.  For  examples 
of  an  improper  use  of  this  form  of  acquittal  see  C.  M.  O.  5, 1913,  2-3 ; 
27,  1913,  9;  and  41, 1915,  11. 

It  will  be  noted  that  there  is  no  legal  distinction  between  a  simple 
acquittal  and  one  to  which  one  of  the  additional  expressions  above 
quoted  has  been  added,  and  it  is  to  be  emphasized  that  only  in  excep- 
tional cases  is  the  use  of  any  form  of  acquittal,  other  than  the  simple 
"  acquit,"  justified.  Unless  this  rule  be  strictly  adhered  to  and  other 
forms  of  acquittal  reserved  for  special  cases,  the  distinction  draAvn 
above  will  soon  be  lost,  and  not  only  would  a  simple  acquittal  be 
robbed  of  its  full  absolving  significance,  but  also  the  proper  purposes 
for  which  the  other  forms  of  acquittal  are  reserved  would  be  de- 
feated. 

324.  Finding  and  sentence  of  persons  tried  in  joinder. — When  two  or 
more  persons  are  tried  in  joinder,  the  finding  and  sentence  (or  acquit- 
tal) in  the  case  of  each  person  arraigned  and  tried  should  be  sepa- 
rately recorded. 

325.  Findings  to  be  recorded  in  handwriting  of  judge  advocate. — After 
the  court  has  arrived  at  its  findings  the  judge  advocate  is  recalled  and 
directed  to  record  the  same.    They  must  be  entered  on  the  record  in 
the  handwriting  of  the  judge  advocate  and  must  be  free  from  inter- 
lineations and  erasures.    This  direction  applies  to  the  entire  findings. 
This  includes  everything  which  properly  forms  a  part  of  the  find- 
ings, commencing  with  the  words,  "the  (first)  specification  of  the 
(first)  charge." 

RECORD  OF  PREVIOUS  CONVICTIONS. 

326.  When  introduced. — The  judge  advocate  shall,  immediately  after 
recording  the  finding,  except  where  such  finding  has  resulted  in  an 
acquittal,  state  whether  or  not  he  has  any  record  of  previous  convic- 


206  INSTRUCTIONS  FOR  COURTS  AND  BOARDS. 

tions.  If  not,  an  entry  to  this  effect  shall  be  made  in  the  record,  but 
the  court  need  not  be  reopened.  If  there  be  such  record,  the  court 
shall  be  opened  and  the  same  shall  be  submitted  to  the  accused  for 
opportunity  to  object  to  its  admission.  If  there  be  no  valid  objection, 
the  same  shall  be  read  by  the  judge  advocate  in  the  presence  of  all 
parties  to  the  trial. 

327.  Record  of  such  convictions  only  as  have  been  approved  by  proper 
authority  admissible. — The  record  of  a  previous  conviction,  to  be  ad- 
missible, must  show  that  such  conviction  was  approved  by  the  author- 
ity whose  action  was  requisite  to  give  effect  to  the  sentence.    If  the 
conviction  was  approved  by  such  authority,  it  is  admissible  even 
though  the  sentence  of  the  court  may  have  been  remitted  either  in 
whole  or  in  part.    (C.  M.  O.  29, 1914,  5.) 

328.  Must  relate  to  current  enlistment — exceptions. — The  general  rule 
is  that  the  record  of  previous  convictions,  in  order  to  be  admissible, 
must  relate  to  the  current  enlistment  of  the  accused,  if  an  enlisted 
man.    But,  in  the  cases  of  men  serving  under  extended  enlistments, 
convictions  occurring  prior  to  the  expiration  of  the  four-year  term  of 
enlistment,  or  prior  to  the  current  extension  of  such  enlistment,  shall 
not  be  considered  as  having  occurred  during  their  current  enlistment. 
On  the  other  hand,  when  the  last  enlistment  was  terminated  by  sen- 
tence of  court-martial  or  by  discharge  as  undesirable  by  order  of 
the  department,  all  convictions  occurring  in  the  prior  enlistment 
thereby  terminated  are  admissible.     (See  C.  M.  O.  29,  1914,  4-5.) 

329.  Previous  convictions  while  serving  in  Army. — Record  of  pre- 
vious convictions  by  courts-martial  while  serving  an  enlistment  in 
the  Army  is  not  admissible  as  record  of  previous  convictions  before 
naval  courts-martial.    But,  in  the  cases  of  enlisted  men  of  the  Marine 
Corps  who  have  been  detached  for  service  with  the  Army  by  order 
of  the  President,  it  has  been  held  that  convictions  by  Army  courts 
under  Army  Regulations  shall  be  regarded  as  previous  convictions, 
subject  to  the  regulations  governing  record  of  previous  convictions. 

330.  What  extract  of  record  read  shall  show. — The  extract  from  the 
current  service  record  of  the  accused  showing  record  of  previous 
convictions,  which  should  in  the  absence  of  objection  be  read  by  the 
judge  advocate,  should  include  the  offense  committed,  the  fact  and 
nature  of  the  trial,  conviction,  sentence,  and  approval  by  the  proper 
authorities,  together  with  the  dates  of  the  offense,  trial,  and  ap- 
proval. 

331.  Court-martial  orders. — A  printed  court-martial  order  is  prima 
facie  evidence  of  its  contents,  and  may,  in  the  absence  of  objection, 
be  introduced  in  officers'  cases  as  a  record  of  previous  conviction. 

332.  How  record  of  previous  convictions  is  introduced  when  objected 
to. — Record  of  previous  convictions,  if  objected  to  by  the  accused, 


INSTRUCTIONS  FOE  COURTS  AND  BOARDS.  207 

should  be  introduced  in  the  same  manner  as  evidence  and  is  sub- 
ject to  the  rules  of  evidence;  it  is  generally  documentary  in  form, 
and,  as  a  rule,  is  forwarded  by  the  convening  authority  to  the  judge 
advocate,  together  with  the  other  papers  in  the  case.  The  court  will 
rule  whether  or  not  the  record  shall  be  admitted 

333.  Record  of  previous  convictions  admissible  in  revision. — In  cases  in 
which  the  accused  has  first  been  found  not  guilty  by  the  court,  but 
in  revision  the  court  revokes  this  finding  and  substitutes  therefor  a 
finding  of  guilty,  the  record  of  previous  convictions  should  be  intro- 
duced during  the  proceedings  in  revision;  such  record  of  previous 
convictions  not  being  evidence  or  testimony  in  the  legal  sense,  which 
refers  to  matter  tending  to  establish  the  guilt  or  innocence  of  the 
accused  upon  the  charge  rather  than  to  matter  introduced,  after  the 
trial  has  been  finished,  for  the  sole  purpose  of  being  considered  by 
the  court  in  arriving  at  its  sentence.    In  such  cases  the  accused  must 
of  course  be  present  when  the  evidence  of  previous  convictions  is 
introduced.     (C.  M.  O.  29,  1914,  5.) 

334.  Copy  appended  to  record. — A  copy  of  the  record  of  previous  con- 
victions read  to  the  court  shall  be  appended  to  the  record. 

SENTENCE. 

335.  Punishment  to  be  adjudged. — It  is  made  by  law  the  duty  of 
courts-martial,  in  all  cases  of  conviction,  to  adjudge  a  punishment 
adequate  to  the  nature  and  degree  of  the  offense  committed.     (A.  G. 
N.  51.)     In  so  doing  due  regard  must  be  had  for  the  requirements 
of  the  Articles  for  the  Government  of  the  Navy  and  the  limitations 
prescribed  by  the  President  for  punishments  in  time  of  peace.     (See 
sec.  390.)     Sentences  must  be  neither  cruel  nor  unusual,  and  must  be 
in  accord  with  the  common  lawr  of  the  land  and  the  customs  of  war. 
In  cases  where  a  statute  has  designated  a  penalty  for  a  particular 
offense,  none  other  than  that  particular  penalty  may  be  imposed,  and 
the  court  must  pronounce  the  sentence  which  the  law  requires  when- 
ever the  fact  is  proved.    (See,  for  example,  K.  S.  3652,  quoted  in  U.  S. 
Navy  Regulations,  1913,  R-4316.) 

336.  Method  of  arriving  at  sentence. — When  the  court  has  been  closed 
for  the  purpose  of  determining  the  sentence,  each  member  shall  write 
down  and  subscribe  the  measure  of  punishment  which,  subject  to  the 
provisions  in  the  preceding  section,  he  may  think  the  accused  ought 
to  receive,  and  hand  his  vote  to  the  president,  who  shall,  after  re- 
ceiving all  the  votes,  read  them  aloud.    Except  in  the  case  of  a  death 
sentence,  which  requires  the  concurrence  of  two-thirds  of  the  mem- 
bers present,  all  sentences  may  be  determined  by  a  majority  of  votes. 
(See  A.  G.  N.  50.)     If  the  requisite  number  do  not  agree  upon  the 
nature  and  degree  of  the  punishment  to  be  inflicted,  the  president 


208  INSTRUCTIONS  FOR  COURTS  AND  BOARDS. 

proceeds  in  the  following  manner  to  obtain  a  decision :  He  shall  begin 
with  the  mildest  punishment  that  has  been  proposed,  and  after  read- 
ing it  aloud  shall  ask  the  members  successively,  beginning  with  the 
junior  in  rank, "  Shall  this  be  the  sentence  of  the  court  ?  "  And  every 
member  shall  vote,  and  the  president  shall  note  the  votes.  Should 
there  be  no  decision,  the  president  shall,  in  the  same  manner  as  before, 
obtain  a  vote  on  the  next  mildest  punishment,  and  shall  so  continue 
until  a  sentence  is  decided  upon.  A  tie  vote  on  any  sentence  should 
be  reconsidered,  with  a  view  to  obtaining  a  majority  either  for  or 
against,  before  passing  on  to  the  next  sentence. 

337.  Death  sentence — when  adjudged. — The  death  sentence  may  be 
adjudged  only  in  cases  where  such  punishment  is  expressly  provided 
in  the  Articles  for  the  Government  of  the  Navy.     (A.  G.  N.  50.) 
Such  sentence  may  be  carried  into  execution  only  upon  the  confirma- 
tion of  the  President.    (A.  G.  N.  53.) 

338.  Dismissal. — A  sentence  of  dismissal  may  be  adjudged  in  the 
case  of  an  officer,  but  in  time  of  peace  such  sentence  may  be  adjudged 
only  in  such  cases  as  the  limitations  of  punishment  prescribed  by  the 
President  permit.    A  sentence  to  dismissal  can  be  carried  into  execu- 
tion only  upon  the  confirmation  of  the  President.     (A.  G.  N.,  53.) 

339.  Dismissal  to  precede  imprisonment  of  an  officer. — In  all  cases 
where  an  officer  is  sentenced  to  imprisonment  the  sentence  shall  pro- 
vide for  his  dismissal  prior  thereto. 

340.  Loss  of  pay. — Sentences  which  include  forfeiture  of  pay  shall, 
in  the  cases  of  officers,  state  the  rate  of  pay  to  be  lost  and  the  time 
of  such  forfeiture. 

341.  Restriction. — A  court  may  sentence  an  officer  or  enlisted  man 
to  be  restricted  to  the  limits  of  a  ship,  post,  or  station  for  a  specified 
period.    This  form,  of  sentence  is  usually  accompanied  by  a  forfeiture 
of  pay. 

342.  Loss  of  numbers, — An  officer  may  be  sentenced  to  a  loss  of  num- 
bers.  When  an  officer's  position  on  the  Navy  Register  will  not  permit 
of  his  losing  the  adjudged  numbers  in  grade,  the  court  shall  place 
him  at  the  foot  of  the  list,  with  the  proviso  that  he  is  to  remain  in 
that  position  until  he  has  lost  the  required  numbers. 

343.  loss  of  seniority, — In  the  cases  of  warrant  officers,  where  pro- 
motion is  based  upon  length  of  service  in  grade,  loss  of  seniority  for 
a  specified  period  of  time  should  be  adjudged  in  lieu  of  a  loss  of 
numbers. 

344.  Public  reprimand — not  favored. — The  sentence  of  public  repri- 
mand, while  legal,  is  not  regarded  with  favor  by  the  department  in 
cases  where  the  limitations  prescribed  by  the  President  permit  of 
other  punishment. 

345.  Sentence  of  suspension — not  favored. — The  undesirability  of  ad- 
judging a  sentence  of  suspension,  with  full  or  with  reduced  pay,  has 


INSTRUCTIONS   FOE   COURTS  AND  BOARDS.  209 

frequently  been  commented  upon  by  the  department.  This  sentence 
is  objectionable  because  it  is  detrimental  to  the  interests  of  both  the 
officer  and  the  Government.  This  form  of  punishment  may,  however, 
legally  be  imposed  for  any  offense  committed  by  an  officer  where  the 
penalty  is  discretionary  with  the  court,  and  the  term  of  suspension 
may  be  for  any  stated  period.  Also,  the  President  may  mitigate  a 
sentence  of  dismissal  to  suspension  for  a  limited  time.  (5  Op.  Atty. 
Gen.,  43.)  There  are  properly  two  kinds  of  suspension — suspension 
from  rank  and  suspension  from  duty,  and  sentences  including  sus- 
pension must  state  whether  from  rank  or  from  duty  only.  The 
former  operates  to  deprive  an  officer,  during  the  period  specified,  of 
the  right  to  promotion  and  of  all  the  other  rights  and  privileges 
incident  to  his  rank ;  the  latter  merely  deprives  him  of  authority  to 
give  orders  to  or  exact  obedience  from  his  inferiors. 

346.  Reduction  in  rating  should  be  included  in  sentences  of  petty 
officers  involving  confinement, — In  all  cases  in  which  the  sentence  im- 
posed on  a  petty  officer  involves  confinement,  it  should  include  re- 
duction to  one  of  the  ratings  below  petty  officer  in  the  branch  to 
which  he  belongs,  and  in  the  case  of  a  noncommissioned  officer  of  the 
Marine  Corps  to  private.     (But  see  sec.  347.)     Reduction  to  seaman 
gunner  is  applicable  only  in  cases  of  men  holding  a  certificate  as  such. 
(C.M.  0.30,1912,6.) 

347.  Summary  court  punishments  may  be  adjudged. — General  courts- 
martial  are  empowered  by  statute  to  adjudge  any  of  the  punish- 
ments authorized  for  summary  courts  martial.     (A.  G.  N.  35.)    As  it 
is  the  practice  of  the  department  to  cause  all  summary  court-martial 
sentences  adjudged  by  general  court-martial  to  be  carried  into  execu- 
tion at  the  place  where  the  prisoner  may  be  serving,  and  in  the 
same  manner  as  if  the  sentence  had  been  adjudged  by  summary 
court-martial,  the  desirability  of  reduction  in  rating  does  not  apply 
as  in  the  case  of  other  prisoners,  and  may  be  omitted  in  the  discretion 
of  the  court.    (See  sec.  346.) 

348.  Form  of  sentence  including  confinement  at  hard  labor. — Sentences 
of  general  courts-martial  in  the  cases  of  enlisted  men  of  the  Navy  and 
Marine  Corps,  which  include  confinement  at  hard  labor,  will  ordi- 
narily be  in  the  following  form : 

The  court,  therefore,  sentences  him, ,  ,  United  States 

,   (to  be  reduced  to  the  rating  (rank)   of  ),  to  be  confined  for  a 

period  of (then  to  be  dishonorably  discharged  from  the  United  States 

naval  service,  or  to  be  discharged  from  the  United  States  naval  service  with  a 
bad  conduct  discharge),  and  to  suffer  all  the  other  accessories  of  said  sentence, 
as  prescribed  by  section  349,  Naval  Courts  and  Boards. 

349.  Meaning  of  "  Other  accessories  of  said  sentence." — The  words 
"  other  accessories  of  said  sentence,"  when  used  in  the  sentence  of  a 
general  court-martial,  shall  be  understood  to  include  the  following: 


210  INSTRUCTIONS  FOR  COURTS  AND  BOARDS. 

The  person  so  sentenced  shall  perform  hard  labor  while  confined 
pursuant  to  such  sentence,  and  after  his  accrued  pay  (and  allowances 
in  the  case  of  an  enlisted  man  of  the  Marine  Corps)  shall  have  dis- 
charged his  indebtedness  to  the  United  States  at  the  date  of  ap- 
proval of  such  sentence,  shall  forfeit  all  pay  (and  in  the  case  of  an 
enlisted  man  of  the  Marine  Corps  sentenced  to  dishonorable  (bad 
conduct)  discharge,  all  allowances)  that  may  become  due  him  during 
a  period  equivalent  to  the  term  of  such  confinement  (or,  if  sentenced 
to  dishonorable  (bad  conduct)  discharge,  during  his  current  enlist- 
ment), except  the  sum  of  $3  per  month  during  such  confinement  for 
necessary  prison  expenses,  and  if  dishonorably  discharged  (dis- 
charged with  bad  conduct  discharge)  pursuant  to  such  sentence,  a 
further  sum  of  $20  to  be  paid  him  when  discharged. 

(In  cases  of  fraudulent  enlistment,  when  a  man  has  been  enlisted  in  both 
branches  of  the  service,  and  has  not  been  discharged  from  either,  the  sentence 
shall  read  as  in  section  348.  Under  such  a  sentence  the  Department  will  cause 
the  man  to  serve  sentence  under  his  proper  enlistment,  and,  should  this  enlist- 
ment be  in  the  Navy,  the  loss  of  allowances  will  be  remitted. ) 

350.  Discharge  alone   may  be   adjudged. — A   general   court-martial 
may  sentence  an  enlisted  man  to  a  dishonorable  (bad  conduct)  dis- 
charge alone,  without  adjudging  a  period  of  confinement  and  "other 
accessories." 

351.  Terms  of  imprisonment  to  be  defined. — A  sentence  of  imprison- 
ment must  express  distinctly  for  what  period  the  same  shall  continue. 

352.  When  sentence  involves  confinement. — The  term  of  confinement 
shall  take  effect  from  the  date  of  approval  of  the  sentence.     Should 
an  unusual  time  elapse  between  the  date  of  confinement  of  the  accused 
for  trial  and  the  date  of  approval  of  the  sentence,  this  period  may 
be  considered  by  the  convening  authority  as  a  ground  for  mitigation 
in  acting  upon  the  case.    Should  the  sentence  be  to  solitary  confine- 
ment, or  to  confinement  on  reduced  rations,  the  time  of  such  condi- 
tional confinement  must  be  fulfilled  unless  such  provision  of  the  sen- 
tence be  remitted  or  mitigated  by  the  convening  or  higher  authority. 

353.  Confinement  on  bread  and  water. — Courts-martial  shall  exercise 
care  and  discretion  in  resorting  to  the  punishment  of  confinement  on 
bread  and  water,  and  shall  not  adjudge  it  in  any  case  for  a  longer 
period,  consecutively,  than  five  days.     As  a  shorter  interval  on  bread 
and  water  is  less  liable  to  work  injury  to  health,  the  maximum  inter- 
val allowed  should  be  adjudged  only  in  extreme  cases.   (See  sec.  364.) 

354.  Judge  advocate  to  be  recalled  to  record  the  sentence. — When  a 
sentence  has  been  determined  upon,  the  judge  advocate  shall  be  called 
before  the  court,  and,  under  its  direction,  shall  draw  up  the  sentence, 
specifying  the  exact  nature  and  degree  of  the  punishment  adjudged, 
and,  after  approval  by  the  court,  shall  enter  the  same  on  the  record. 
But  it  must  not  appear  on  the  record  what  number  of  members  voted 


INSTRUCTIONS  FOR  COURTS  AND  BOARDS.  211 

for  the  sentence,  except  that,  in  the  case  of  a  death  sentence,  the 
record  must  explicitly  state  that  such  sentence  was  adjudged  with 
the  concurrence  of  two-thirds  of  the  members  present. 

355.  Manner  of  recording  sentence. — The  sentence  must  be  recorded 
in  the  judge  advocate's  own  handwriting,  and  must  be  free  from  era- 
sures and  interlineations.    Numbers  in  the  sentence  shall  be  expressed 
both  by  words  and  by  figures. 

356.  Authentication  of  sentence. — After  the  sentence  has  been  re- 
corded, the  law  requires  that  the  proceedings  in  each  separate  case 
tried  by  the  same  court  be  signed  by   all  the  members  present 
when  judgment  is  pronounced,   and   also   by   the   judge   advocate. 
(A.  G.  N.  52.)     In  case  of  a  member  dying  before  signing,  the  signa- 
tures of  the  remaining  members  will  be  sufficient.     (C.  M.  O.  12, 
1915,  8.) 

RECOMMENDATION  TO  CLEMENCY. 

. 

357.  Recommendation  to  clemency. — The  power  to  pardon,  remit,  or 
mitigate  is  expressly  vested  in  the  President  of  the  United  States  or 
the  convening  authority.    But,  if  mitigating  circumstances  have  ap- 
peared during  a  trial,  which  could  not  be  taken  into  consideration  in 
determining  the  degree  of  guilt  found,  the  members  of  the  court,  in- 
dividually and  not  as  a  body,  may  avail  themselves  of  such  circum- 
stances as  grounds  for  recommending  the  accused  to  clemency.    In 
so  doing  the  members  signing  the  recommendation  should  set  forth 
explicity   their   reasons   for   making  such   recommendation.     This 
recommendation  is  recorded  immediately  after  the  signatures  of  the 
members  of  the  court  and  the  judge  advocate  to  the  sentence,  and  is 
signed  by  the  members  concurring  in  it. 

RECORD  OF  PROCEEDINGS. 
(See  Chapter  VII.) 

358.  In  general. — Every  court-martial  will  keep  an  accurate  record 
of  its  proceedings.    The  record  of  proceedings  in  each  case  tried  shall 
set  forth  the  names  of  the  members  of  the  court  who  were  present 
during  the  trial ;  that  the  accused  was  furnished  a  copy  of  the  charges 
and  specifications  against  him;  that  the  precept  was  read  aloud  in 
the  presence  of  the  accused ;  that  he  was  afforded  an  opportunity  to 
challenge  members;   and  that  the  members,  judge  advocate,  clerk 
(stenographer),  and  witnesses  were  duly  sworn.     It  shall  further 
show  the  arraignment,  preliminary  motions,  pleas,  objections  and 
grounds  therefor,  all  testimony  taken  and   documentary  evidence 
received,  decisions  and  orders  of  the  court,  adjournments,  statement 
and  closing  arguments,  findings,  and  sentence  or  acquittal;  in  short, 


212  INSTRUCTIONS  FOB  COURTS  AND  BOARD 

the  entire  proceedings  of  the  court  which  are  necessary  to  a  complete 
understanding  by  the  reviewing  authority  of  the  whole  case  and 
every  incident  material  thereto.  In  this  connection  see  section  317. 

Each  case  is  thus  made  complete  in  itself  and  the  record  con- 
tinuous. When  all  the  cases  laid  before  the  court  have  been  finished 
and  severally  authenticated,  and  forwarded,  the  president  shall, 
unless  otherwise  directed  by  the  convening  authority,  inform  the  said 
authority  by  letter  that  all  the  business  before  the  court  has  been 
completed,  and  the  court  shall  adjourn  to  await  the  action  of  the 
convening  authority. 

For  detailed  instructions  concerning  the  manner  of  making  up 
court-martial  records,  see  Chapter  VII. 

359.  Questions  numbered. — The  questions  asked  each  witness  shall 
be  numbered  consecutively  throughout  the  examination.    If  the  ex- 
amination is  interrupted  by  recess  or  adjournment  and  is  resumed 
when  the  court  reassembles  or  reconvenes,  the  numbering  shall  be 
continued.    If,  however,  the  first  examination  of  the  witness  is  com- 
pleted, and,  later  in  the  trial,  he  is  recalled,  the  numbering  of  the 
questions  asked  on  this  later  examination  shall  begin  anew. 

360.  Questions  and  answers  paragraphed. — Each  question  and  answer 
of  a  witness  shall  begin  a  new  paragraph. 

361.  Recess  or  adjournment. — When  the  business  of  the  court  is  sus- 
pended from  one  day  to  the  next,  or  for  a  longer  period,  the  record 
shall  show  that  the  court  adjourned  until  the  time  agreed  upon ;  but 
when  the  period  of  suspension  of  business  is  from  one  part  of  a  day 
to  another  part  of  the  same  day,  the  record  should  show  that  a  recess 
was  taken  for  the  time  mentioned. 

362.  Beading  the  record. — In  reading  the  record  of  the  previous  day 
upon  the  opening  of  the  court  on  each  successive  day  the  salient 
features  of  the  proceedings  only  need  be  read ;  it  is  not  necessary  at 
this  time  to  read  the  testimony  recorded.    The  ruling  of  the  court  on 
questions  submitted  for  decision  should  be  read.    Before  the  trial  is 
finished  the  record  up  -to  that  point  must  have  been  approved. 

363.  Presence  of  accused  during  subsequent  reading  of  record, — If  the 
court  adjourns  after  arriving  at  a  finding  and  sentence  (or  acquittal) 
to  meet  the  next  day  for  the  purpose  of  verifying  the  record,  the  rec- 
ord of  proceedings  of  the  succeeding  day  should  distinctly  show  that 
the  accused  was  present  during  the  reading  of  so  much  thereof  as 
referred  to  the  proceedings  in  open  court,  that  he  then  withdrew,  and 
that  the  court  was  cleared,  the  judge  advocate  remaining,  whereupon 
that  part  of  the  record  which  pertained  to  the  proceedings  in  closed 
court  was  read. 

364.  Medical  certificate  must  be  attached  in  certain  cases. — Whenever 

any  person  is  sentenced  for  a  period  exceeding  10  days  to  confine- 

• 


INSTRUCTIONS   FOR   COURTS   AND  BOARDS. 

ment  on  diminished  rations,  or  on  bread  and  water,  there  must  ap- 
pear on  the  record  of  proceedings  the  certificate  of  the  senior  medical 
officer  under  the  immediate  jurisdiction  of  the  convening  authority, 
to  the  effect  that  such  sentence  will  not  be  seriously  injurious  to  the 
health  of  the  prisoner.  (In  this  connection,  see  A.  G.  N.  33.) 

365.  Completion   of  record. — After  the   proceedings   and   sentence, 
with  the  recommendation  to  clemency,  if  any,  have  been  signed,  the 
action  of  the  court,  whether  an  adjournment  or  the  taking  up  of  a 
new  case,  shall  be  recorded ;  after  this  entry  has  been  authenticated  by 
the  signatures  of  the  president  and  the  judge  advocate,  the  record 
is  completed. 

366.  Copy  of  record  for  accused. — The  accused  is  entitled  to  a  certi- 
fied copy  of  the  proceedings  of  a  general  court-martial.     Such  copy 
should  contain  a  record  of  all  the  proceedings  except  the  findings, 
sentence,  recommendation'  to  clemency,  and  action  of  the  convening 
authority.     These  latter  may  be  obtained  by  him,  however,  upon 
application  to  the  Department  after  the  proceedings  have  been  con- 
summated by  proper  authority. 

367.  Duty  of  judge  advocate  to  furnish  copy  to  the  accused. — The . 
judge  advocate  should,  at  the  beginning  of  a  trial,  inquire  of  the 
accused  if  he  desires  a  copy  of  the  record  of  proceedings.    If  so,  the 
record  shall  be  made  in  duplicate  and  a  copy  furnished  the  accused 
at  the  completion  of  his  trial.    If  not,  the  judge  advocate  shall  secure 
from  the  accused  a  waiver  of  his  right  to  a  copy  of  the  proceedings. 
Should  the  accused  waive  his  right  to  a  copy  of  the  record  at  the 
time  of  his  trial,  he  can  not  afterwards  demand  a  copy. 

368.  Notation  on  cover  page. — The  fact  that  a  copy  of  the  record 
has  been  furnished  the  accused,  or  that  he  has  waived  his  right  there- 
to, shall  be  noted  on  the  cover  page. of  the  case. 

369.  Waiver  or  receipt  appended. — The  waiver  of  the  right  ro  a  copy 
of  the  proceedings,  or  when  a  copy  is  furnished  a  receipt  therefor, 
shall  in  each  case  be  the  last  document  appended  to  the  record.    (See 
p.  382.) 

370.  Final  disposition  of  records. — The  records  of  proceedings  of  all 
courts-martial  shall  be  forwarded  direct  to  the  Judge  Advocate  Gen- 
eral by  the  reviewing  authority,  after  acting  thereon,  or,  in  the  case 
of  general  courts-martial  convened  by  the  Secretary  of  the  Navy, 
by  the  presiding  officer  of  such  courts. 

371.  Letters  of  transmittal  not  required.— Letters  of  transmittal  are 
not  required  in  forwarding  to  the  Department  records  of  proceedings 
of  courts-martial  and  other  courts  and  boards. 

REVISION. 

' 

372.  Revision  must  be  before  dissolution  of  court. — Upon  the  receipt 
'of  the  record  of  a  court-martial,  the  reviewing  authority  shall  pro- 


214  INSTRUCTIONS  FOR  COURTS  AND  BOARDS. 

ceed  at  once  to  examine  the  same,  in  order  that  it  may  be  returned 
for  revision,  if  such  course  be  necessary,  before  the  dissolution  of 
the  court. 

373.  Legal   quorum   required   for   revision. — Should   the   reviewing 
authority  decide  to  reconvene  the  court  in  order  to  amend  or  other- 
wise remedy  a  defect  or  omission  in  the  record,  or  for  a  reconsider- 
ation of  its  finding  or  sentence,  which  may  be  done  when  the  facts 
warrant,  the  record  shall  show  that  at  least  five  members  of  the 
court  which  sat  upon  the  trial  and  a  judge  advocate  are  present.    A 
correction  can  not  be  made  unless  there  is  a  legal  quorum  present. 
So  long  as  this  essential  be  fulfilled  it  is  not  necessary  to  the  legality 
of  the  proceedings  that  all  the  members  present  at  the  original  trial 
be  present  at  the  reassembling  of  the  court. 

374.  The  judge  advocate  on  revision. — It  is  not  necessary  that  the 
same  judge  advocate  officiate  on  the  revision'  of  a  case  as  took  part 
in  the  original  proceedings.     If  a  new  judge  advocate  be  detailed, 
however,  the  orders  of  the  convening  authority,  modifying  the  pre- 
cept in  that  respect,  shall  be  read  and  a  copy  prefixed  to  the  record 
in  revision.    Also,  the  order  convening  the  court  in  revision  should 
not  be  read  until  after  the  new  judge  advocate  has  been  sworn. 

375.  No  new  evidence  admissible. — When  a  court  is  ordered  to  re- 
vise its  proceedings,  new  evidence  shall  not  be  admissible.     (But  see 
sec.  333.) 

376.  Record  in  revision. — During  a  revision  an  entirely  separate 
record  shall  be  kept,  to  which  the  order  for  reassembling  must  be 
prefixed,  and  which  shall  itself  be  prefixed  to  the  record  of  which  it 
is  a  revision.     A  full  entry  shall  be  made  of  all  the  proceedings, 
verified  in  the  ordinary  manner  by  the  signatures  of  all  the  members 
of  the  court  present  and  the  judge  advocate,  and  transmitted,  as  be- 
fore, to  the  reviewing  officer  for  his  approval*!*  jqiaoa 

377.  Clerical  errors  or  omissions,  how  corrected. — Clerical  errors  or 
omissions  in  the  original  record  may  be  amended  by  the  court  in  re- 
vision without  the  presence  of  the  accused,  but  they  are  not  to  be 
corrected  in  an  informal  manner  by  erasure  or  interlineation.     The 
legal  procedure  is  for  the  proper  officer  to  reconvene  the  court,  call- 
ing its  attention  in  the  order  for  reassembling  to  the  error  requiring 
correction,  and  for  the  court,  on  reassembling,  to  decide  as  to  the 
correction  to  be  made,  and  to  incorporate  it  as  a  part  of  the  record 
of  proceedings  in  revision. 

378.  Presence  of  the  accused. — It  is  not  in  general  necessary  or  de- 
sirable that  the  accused  be  present  at  a  revision.     When,  however, 
any  possible  injustice  may  result  from  his  absence,  he  should  be  re- 
quired or  permitted  to  be  present  with  counsel,  if  desired.     Thus, 
where  the  defect  to  be  corrected  consists  in  an  omission  properly  to 

J 


INSTRUCTIONS   FOR  COURTS  AND  BOARDS.  215 

set  forth  a  motion  made  or  an  objection  taken  by  the  accused,  it  may 
be  desirable  that  he  should  be  present  in  order  that  he  may  be  heard 
as  to  the  proper  form  of  the  proposed  correction.  But  where  the  error 
consists  in  the  omission  of  a  formal  statement  only,  or  a  reconsidera- 
tion of  the  findings  or  sentence  on  the  record  as  it  stands  is  what  is 
required,  the  presence  of  the  accused  is  not  in  general  called  for. 

379.  Copy  of  record  in  revision  for  accused. — The  accused  is  entitled 
to  an  exemplified  copy  of  the  record  in  revision  to  the  same  extent 
as  he  is  to  a  copy  of  the  original  proceedings.     (See  sec.  366.) 

380.  Finding  and  sentence  revised  in  closed  court. — The  court  will  be 
closed  during  a  revision  of  the  finding  and  sentence. 

381.  Revision  affecting  finding  and  sentence — Court's  action  to  be  in 
handwriting  of  judge  advocate. — The  finding   (sentence)   in  revision 
must  be  in  the  handwriting  of  the  judge  advocate.    In  a  revision  of 
a  case  the  statement,  "The  court  does  respectfully  adhere  to  its 
former  finding  (sentence),"  is  equivalent  to  a  rewriting  of  the  find- 
ing (sentence),  and  shall  be  in  the  handwriting  of  the  judge  advocate. 

REVIEWING  AUTHORITY. 

382.  Execution  of  sentence. — No  sentence  of  a  general  court-martial 
may  be  carried  into  execution  until  the  entire  proceedings  have  been 
reviewed  and  the  sentence  duly  approved.    The  approval  of  the  con- 
vening authority  is  sufficient  except  for  certain  sentences  before  the 
execution  of  which  the  approval  of  higher  authority  is  required  by 
law.     (See  A.  G.  N.  53.)     When  the  confirmation  of  a  sentence  re- 
quiring the  approval  of  higher  authority  is  desired,  the  record  should 
be  forwarded  to  the  next  higher  reviewing  authority  by  the  conven- 
ing authority  with  his  approval  indorsed  thereon. 

383.  "  Reviewing  authority  "  defined. — Any  officer  to  whom  the  pro- 
ceedings of  a  court-martial  are  regularly  submitted  for  review  in 
accordance  with  law  is  a  reviewing  authority.    When,  as  is  ordinarily 
the  case,  such  officer  is  the  convening  authority,  this  latter  term 
should,  in  order  to  avoid  confusion,  be  used  in  referring  to  him  even 
while  exercising  the  functions  of  a  reviewing  authority. 

384.  Power  of  reviewing  authority. — See  A.  G.  N.  54  and  act  of 
February  16,  1909,  quoted  under  A.  G.  N.  33,  as  to  the  power  of  the 
reviewing  authority  to  remit  or  mitigate.     In  connection  with  the 
exercise  of  this  power,  see  General  Order  No.  110   (revised)    and 
article  4893,  Naval  Instructions,  1913,  and  C.  M.  O.  3,  1917,  4-5,  to 
be  considered  in  connection  therewith.    When,  however,  the  reviewing 
authority  desires  neither  to  approve  the  record  of  a  court  nor  to 
exercise  his  power  to  remit  or  mitigate,  his  power  is  limited  to  re- 
turning the  record  to  the  court  for  revision  and  reconsideration  in 


216  INSTRUCTIONS   FOR  COURTS  AND  BOARDS. 

any  features  which  he  may  deem  to  merit  the  same,  and,  in  the 
event  of  the  court's  adherence  to  its  former  conclusions,  to  a  dis- 
approval of  the  same.  It  is  not  in  the  power  of  the  reviewing 
authority  to  compel  a  court  to  reverse  its  decision  upon  a  motion  or 
plea,  or  to  change  its  findings  or  sentence,  when,  upon  being  re- 
convened by  him,  it  has  declined  to  modify  the  same,  nor  either 
directly  or  indirectly  to  enlarge  the  measure  of  punishment  imposed 
by  sentence  of  a  court-martial.  When  the  proceedings,  findings,  or 
sentence  of  a  court  are  illegal,  the  reviewing  authority  should  set 
aside  the  same. 

385.  Effect  of  disapproval. — The  disapproval  of  the  findings  or  sen- 
tence of  a  court-martial  by  the  legal  reviewing  authority  is  not  a 
mere  expression  of  disapprobation,  but  has  the  legal  effect  of  entirely 
.nullifying  the  same.    Thus  a  reviewing  authority  can  not  disapprove 

a  sentence  and  then  proceed  to  mitigate  the  same  or  carry  it  into 
effect  in  any  way,  for,  after  disapproval,  there  is  nothing  left  to 
mitigate  or  carry  into  effect. 

386.  Reviewing  power  vests  in  office  of  authority  so  acting. — The  re- 
viewing power,  as  well  as  the  convening  power,  of  a  general  court- 
martial  vests  in  the  office,  not  in  the  person,  of  the  authority  so  acting. 
Thus,  when  the  reviewing  power  is  vested  in  the  convening  authority 
and  the  officer  Who  has  ordered  the  court  has  been  relieved  or  is 
absent,  it  is  competent  for  his  successor  in  office,  whether  temporary 
or  permanent,  to  act  as  reviewing  authority. 

387.  Publication  by  court-martial  orders.— The  finding  and  sentence 
of  every  general  court-martial  approved  by  an  officer  having  author- 
ity to  order  such  court  shall  be  communicated  by  him  in  a  court- 
martial  order  to  his  command.    Should  the  proceedings  of  such  court- 
martial  be  disapproved  in  any  particular  for  any  informality  or 
irregularity  of  the  court,  the  particular  informality  or  irregularity 
shall  be  made  known  in  the  court-martial  order  promulgating  the 
result  of  the  trial,  so  as  to  prevent,  if  possible,  a  recurrence  of  similar 

errors. 

• 

388.  Designation  of  prison. — Officers  authorized  by  law  to  convene 
general  courts-martial  are  empowered  to  designate  prisons  for  the 
confinement  of  men  so  sentenced.     In  the  absence  of  instructions 
directing  otherwise,  prisons  will  be  designated  as  follows : 

(a)  Those  convicted  by  courts  convened  by  officers  in  Atlantic 
waters — the  naval  prison  at  the  navy  yard,  Portsmouth,  N.  H. 

(&)  Those  convicted  by  courts  convened  by   officers  in   Pacific 

\   /  «/  •/ 

waters — the  naval  prison  at  the  navy  yard,  Mare  Island,  Cal. 

(c)  Those  convicted  by  courts  convened  by  officers  in  Asiatic 
waters — the  naval  prison,  Cavite,  P.  I.  In  cases  tried  at  Guam,  the 
commandant  may,  in  his  discretion,  designate  the  naval  prison  at 
the  navy  yard,  Mare  Island,  Cal.,  in  lieu  of  Cavite. 


INSTRUCTIONS   FOR   COURTS  AND  BOARDS.  217 

But,  in  all  cases  where  it  is  more  practicable  to  transfer  a  prisoner 
by  means  of  a  convenient  Government  conveyance  to  a  receiving  ship 
or  naval  station  other  than  those  designated  above,  such  prisoner 
shall.be  so  transferred  for  temporary  confinement,  awaiting  an  op- 
portunity for  his  further  transfer  to  the  prison  designated. 

The  convening  authority,  after  acting  upon  a  case,  will  order  trans- 
portation and  send  the  prisoner,  under  proper  guard,  to  the  desig- 
nated prison  at  the  earliest  practicable  date — or,  if  practicable,  by 
the  earliest  Government  conveyance — notifying  the  commandant  at 
the  navy  yard  or  station  at  which  the  designated  prison  is  located,  by 
letter,  stating  the  offense,  sentence,  action  of  the  convening  authority, 
and  date  of  such  action.  A  similar  letter  shall  be  sent  to  the  Auditor 
for  the  Navy  Department,  giving  the  same  data,  and  in  cases  of 
desertion  and  absence  without  or  over  leave,  additional  information 
showing  the  dates  of  beginning  and  ending  of  unauthorized  absence. 
The  service  records  and  pay  accounts,  or  staff  returns,  of  such  prison- 
ers should  accompany  them. 

Notation  shall  be  made  on  the  face  of  the  court-martial  record 
(cover  sheet)  in  the  office  of  the  convening  authority  that  the  above 
mentioned  letters  have  been  sent,  with  the  date,  thus :  Letters  to  com- 
mandant, navy  yard,  Portsmouth,  N.  H.,  and  auditor  (date).  The, 
action  of  the  convening  authority  shown  on  the  record  of  the  case 
as  forwarded  to  the  Judge  Advocate  General,  will  be  sufficient  noti- 
fication to  the  Department  as  to  the  designated  place  of  confinement. 

•• 

DISSOLUTION  OF  COURT. 

389.  Court  dissolved. — A  general  court-martial  is  dissolved  by  the 
order  of  the  authority  who  convened  it.     When  so  dissolved,  it  can 
not  legally  be  reconvened.     (See  C.  M.  O.  4,  1914,  4-5.) 

LIMITATION  or  PUNISHMENT. 

390.  The  following  limitations  to  the  punishment  of  officers  and 
enlisted  men  of  the  Navy  and  Marine  Corps  in  time  of  peace,  by 
naval  general  courts-martial,  for  each  separate  offense,  have  been 
prescribed  by  the  President  of  the  United  States,  and  shall  not  be 
exceeded.     They  give  the  maximum  limit  of  punishment  for  the 
offenses  named,  and  that  limit  is  intended  for  those  cases  in  which 
the  most  severe  punishment  should  be  adjudged.    Members  of  courts- 
martial  should  bear  in  mind  the  fact  that  these  limitations  are  for 
each  separate  offense,  not  for  each  separate  charge,  and  for  several 
separate  and  distinct  offenses,  even  though  they  be  under  the  same 
charge,  the  court  may,  at  its  discretion,  where  the  circumstances 
warrant  such  severity,  adjudge  in  its  sentence  the  limit  of  punish- 
ment for  each  separate  and  distinct  offense.     For  example,  the  limita- 
tion of  punishment  for  drunkenness,  in  the  case  of  an  enlisted  man, 
is  confinement  for  six  months.     If  there  happen  to  be  two  distinct 


218 


INSTRUCTIONS  FOR  COURTS  AND  BOARDS. 


offenses  under  the  charge  of  drunkenness,  and  the  court  finds  both 
specifications  proved,  the  court  may,  at  its  discretion,  impose  a 
sentence  of  confinement  for  one  year. 

Offenses  not  provided  for  herein  remain  punishable  as  authorized 
by  the  Articles  for  the  Government  of  the  Navy  and  the  custom  of 
the  service. 

Loss  of  pay  and  allowances  due,  or  that  may  become  due  during 
confinement,  as  the  case  may  be,  excepting  a  sum  not  to  exceed  three 
(3)  dollars  a  month  for  prison  expenses  and  a  further  sum  not  to 
exceed  twenty-five  (25)  dollars  to  be  paid  upon  discharge  if  sentenced 
to  discharge  from  the  service,  may  be  added  to  any  one  of  the  follow- 
ing limitations: 

If,  in  the  case  of  a  commissioned  or  warrant  officer,  the  maxi-/ 
mum  sentence,  under  the  following  limitations  of  punishment,  ex- 
tends to  dismissal,  and  if,  upon  the  trial,  oral  testimony  can  not  be 
obtained,  by  reason  of  which  fact  the  record  of  proceedings  of  the 
court  of  inquiry,  upon  whose  findings  such  trial  is  wholly  or  partially 
based,  is  used  in  evidence,  the  maximum  punishment  which  may  be 
imposed  shall  not  extend  to  dismissal,  but  shall,  instead,  be  limited 
not  to  exceed  the  loss  of  100  numbers  in  rank.  (See,  in  this  connec- 
tion, C.  M.  O.  46, 1917.) 

In  any  case  where  it  is  necessary  to  use  depositions  at  the  trial 
thereof,  and  depositions  are  so  used,  the  maximum  punishment 
under  such  circumstances  shall  in  no  case  exceed  imprisonment  or 
confinement  for  one  year.  (See  C.  M.  O.  11,  1916,  in  which  the 
Department,  as  a  matter  of  policy,  did  not  approve  a  sentence  of  dis- 
missal in  the  case  of  an  officer  where  a  deposition  had  been  used  in 
securing  conviction.) 

In  all  cases  where  the  following  limitations  of  punishment  provide 
for  confinement,  hard  labor  during  such  confinement  shall  be  in- 
cluded. 


DJI6- 


— 




Offenses. 


Limit  of  punishment. 


Officer:  To  lose  three  numbers. 

Enlisted  man:  Confinement  for  three  months. 


Officer:  Dismissal  and  imprisonment  at  hard  labor 

for  ten  years. 
Enlisted  man:  Imprisonment  at  hard  labor  for  ten 

years  and  dishonorable  discharge. 

Officer:  Dismissal  and  imprisonment  at  hard  labor 

for  ten  years. 
Enlisted  man:  Imprisonment  at  hard  labor  for  ten 

years  and  dishonorable  discharge. 

Officer:  Dismissal  and  imprisonment  at  hard  labor 

for  ten  years. 
Enlisted  man:  Imprisonment  at  hard  labor  for  ten 

years  and  dishonorable  discharge. 

Officer:  Dismissal. 

Enlisted  man:  Confinement  for  two  years  and  dis- 
honorable discharge. 


UNDER  ARTICLE  3. 

Irreverent  or  unbecoming  behavior  during  divine 
service. 

UNDER  ARTICLE  -C 


Making  or  attempting  to  make,  or  uniting  with, 
any  mutiny  or  mutinous  assembly. 


Being  witness  to  or  present  at  any  mutiny,  does  not 
do  his  utmost  to  suppress  it. 


Knowing  of  any  mutinous  assembly  or  of  any  in- 
tended mutiny,  does  not  immediately  communi- 
cate his  knowledge  to  his  superior  or 
officer. 

Disobeying  lawful  order  of  superior  officer. 


INSTRUCTIONS    FOR   COURTS  AND  BOARDS. 


219 


Offenses. 


Limit  of  punishment. 


UNDER  ARTICLE  4— Continued. 

Striking,  assaulting,  or  attempting  or  threatening 
to  strike  or  assault  his  superior  officer  while  in  the 
execution  of  duties  of  office. 


Sleeping  on  watch  or  post: 

1.  Officer  of  the  watch. 

2.  Sentinel. 

3.  Lookout. 

4.  Petty  or  noncommissioned  officer  on  watch 
or  guard. 

Leaving  station  or  post  before  being  regularly  re- 
lieved: 

1.  Officer. 

2.  Petty  or  noncommissioned  officer. 

3.  Sentinel. 

4.  Lookout. 

Intentionally  or  willfully  suffering  a  vessel  of  the 
Navy  to  be  run  upon  a  rock  or  shoal,  or  to  be  im- 
properly hazarded. 

Unlawfully  setting  on  fire  or  destroying  public 
property  not  in  possession  of  pirate,  enemy,  or 
rebel. 

Refusing  to  obey  the  lawful  order  of  superior  officer. 


Maliciously  or  willfully  injuring  any  vessel  of  the 
Navy  or  any  part  of  her  tackle,  armament,  or  equip- 
ment, whereby  the  safety  of  the  vessel  is  hazarded 
or  lives  of  crew  exposed  to  danger. 


UNDER  ARTICLE  6. 


Murder. 


UNDER  ARTICLE  8. 
Profane  swearing. 

Falsehood. 
Drunkenness  on  duty. 

Drunkenness. 

Gambling. 

Fraud. 


Theft: 

1.  Above  one  hundred  dollars. 


2.  Between  fifty  and  one  hundred  dollars. 

3.  Under  fifty  dollars. 


Officer:  Dismissal  and  imprisonment  at  hard  labor 

for  five  years. 
Enlisted  man:  Imprisonment  at  hard  labor  for  five 

years  and  dishonorable  discharge. 


1.  Dismissal 

2.  Confinement  for  one  year  and  dishonorable  dis- 
charge. 

3.  Confinement  for  one  year  and  dishonorable  dis- 
charge. 

4.  Confinement  for  one  year  and  Dishonorable  dis- 
charge. 


1.  Dismissal. 

2.  Confinement  for  one  year  and  dishonorable  dis- 
charge. 

3.  Confinement  for  one  year  and  dishonorable  dis- 
charge. 

4.  Confinement  for  one  year  and  dishonorable  dis- 
charge. 

Officer:  Dismissal  and  imprisonment  at  hard  labor 
for  twenty  years. 


Enlisted  man:  Imprisonment  at  hard  labor  for 
twenty  years  and  dishonorable  discharge. 

Officer:  Dismissal  and  imprisonment  at  hard  labor 
for  twenty  years. 

Enlisted  man:  Imprisonment  for  twenty  years  at 
hard  labor  and  dishonorable  discharge. 

Officer:  Dismissal. 

Enlisted  man:  Confinement  for  two  years  and  dis- 
honorable discharge. 

Officer:  Dismissal  and  imprisonment  at  hard  labor 

for  fifteen  years. 
Enlisted  man:  Imprisonment  for  fifteen  years  at 

hard  labor  and  dishonorable  discharge. 


Officer:  Death. 
Enlisted  man:  Death. 


Officer:  Public  reprimand. 

Enlisted  man:    Solitary  confinement  for  thirty 
days. 

Officer:  Dismissal. 

Enlisted  man:  Confinement  for  one  year  and  dis- 
honorable discharge. 

Officer:  Dismissal  and  imprisonment  for  one  year. 
Enlisted  man:   Confinement  for  one  year  and  dis- 
honorable discharge. 

Officer:  Dismissal. 

Enlisted  man:  Confinement  for  six  months. 

Officer:  Dismissal. 

Enlisted  man:  Confinement  for  six  months. 

Officer:  Dismissal. 

Enlisted  man:    Confinement  for  six  months  and 
dishonorable  discharge. 


1.  Officer:    Dismissal  and  imprisonment  for  four 
years. 

Enlisted  man:    Confinement  for  four  years  and 
dishonorable  discharge. 

2.  Officer:   Dismissal  and  imprisonment  for  three 
years. 

Enlisted  man:    Confinement  for  three  years  and 
dishonoraole  discharge. 

3.  Officer:    Dismissal  and  imprisonment  for  two 
years. 

Enlisted  man:    Confinement  for  two  years  and 
dishonorable  discharge. 


26450°— 17 


-15 


220 


INSTRUCTIONS   FOR   COURTS   AND    BOARDS. 


Offenses. 


Limit  of  punishment. 


UNDER  ARTICLE  8— Continued. 

Scandalous  conduct  tending  to  the  destruction  of 
good  morals. 


Cruelty  toward,  or  oppression  or  maltreatment  of, 
any  person  subject  to  his  orders. 

Quarreling  with,  striking  or  assaulting,  or  using  pro- 
voking or  reproachful  words,  gestures,  or  menaces 
toward  any  person  in  the  Navy. 

Endeayoring  to  foment  quarrels  between  other  per- 
sons in  the  Navy. 

Sending  or  accepting  a  challenge  to  fight  a  duel  or 
acting  as  second  in  a  duel. 


Treating  his  superior  officer  with  contempt  or  being 
disrespectful  to  him  in  language  or  deportment 
while  in  the  execution  of  his  office. 

To  join  in  or  abet  any  combination  to  weaken  lawful 
authority  of,  or  lessen  the  respect  due  to,  his  com- 
manding officer. 

Uttering  seditious  or  mutinous  words. 


Negligent  or  careless  in  obeying  orders. 


Culpably  inefficient  in  the  performance'of  duty. 


Not  using  his  best  exertions  to  prevent  the  unlawful 
destruction  of  public  property  by  others. 


Through  inattention  or  negligence  suffering  a  vessel 
of  the  Navy  to  be  stranded,  or  run  upon  a  rock  or 
shoal,  or  hazarded.  « 

When  attached  to  any  vessel  appointed  as  convoy 
to  any  merchant  or  other  vessel,  fails  diligently  to 
perform  his  duty,  or  demands  or  exacts  any  com- 
pensation for  his  services,  or  maltreats  the  officers 
or  crew  of  such  merchant  or  other  vessel. 

Taking,  receiving,  or  permitting  to  be  received  on 
board  the  vessel  to  which  he  is  attached  any  goods, 
merchandise,  for  freight,  sale,  or  traffic,  except 
)ld,  silver,  or  jewels  for  freight  or  safekeeping,  or 


receipt  or  transportation  of  any  other  article  than 
gold,  silver,  or  jewels  without  authority  from  the 
President  or  the  Secretary  of  the  Navy. 

Knowingly  making,  signing,  or  aiding,  abetting,  di- 
recting, or  procuring  the  making  or  signing  of  any 
false  muster. 

Wasting  any  ammunition,  provisions,  or  other  pub- 
lic property,  or,  having  power  to  prevent  it,  know- 
ingly permits  such  waste. 

When  on  shore,  plundering,  abusing,  or  maltreat- 
ing any  inhabitant  or  injuring  his  property  by 
means  of — 
1.  Manslaughter. 


2.  Assault  with  intent  to  kill. 


3.  Assault  and  battery. 


Officer:  Dismissal  and  imprisonment  at  hard  labor 

for  fifteen  years. 
Enlisted  man:   Confinement  for  fifteen  years  and 

dishonorable  discharge. 
Officer:  Dismissal. 
Enlisted  man:    Confinement  for  six  months  and 

dishonorable  discharge. 

Officer:  To  lose  five  numbers. 

Enlisted  man:  Confinement  for  three  months. 


Officer:  To  lose  five  numbers. 

Enlisted  man:  Confinement  for  three  months. 

Officer:  Dismissal. 

Enlisted  man:   Confinement  for  one  year  and  dis- 
honorable discharge. 

Officer:  Dismissal. 

Enlisted  man:   Confinement  for  one  year  and  dis- 
honorable discharge. 

Officer:  Dismissal. 

Enlisted  man:  Confinement  for  two  years  and  dis- 
honorable discharge. 

Officer:  Dismissal. 

Enlisted  man:  Confinement  for  two  years  and  dis- 
honorable discharge. 

Officer:  To  lose  ten  numbers. 

Enlisted  man:  Confinement  for  six  months. 

Officer:  Dismissal. 

Enlisted  man:  Confinement  for  six  months  and  dis- 
honorable discharge. 

Officer:  Dismissal. 

Enlisted  man:  Confinement  for  two  years  and  dis- 
honorable discharge. 

Officer:  Dismissal. 

Enlisted  man:  Confinement  for  two  years  and  dis- 
honorable discharge. 


Officer:  Dismissal. 


Officer:  Dismissal. 


Officer:  Dismissal  and  imprisonment  for  five  years. 
Enlisted  man:  Confinement  for  five  years  and  dis- 
honorable discharge. 

Officer:  Dismissal. 

Enlisted  man:  Confinement  for  two  years  and  dis« 
honorable  discharge. 


1.  Officer:  Dismissal  and  imprisonment  at  hard 
labor  for  ten  years. 

Enlisted  man:  Imprisonment  at  hard  labor  for  ten 
years  and  dishonorable  discharge. 

2.  Officer:  Dismissal  and  imprisonment  at  hard 
labor  for  five  years. 

Enlisted  man:  imprisonment  at  hard  labor  for  five 
years  and  dishonorable  discharge. 

3.  Officer:  Dismissal. 

Enlisted  man:  Confinement  for  six  months  an€  dis- 
honorable discharge. 


INSTRUCTIONS   FOR   COURTS   AND   BOARDS. 


221 


Offenses. 


Limit  of  punishment. 


UNDER  ARTICLE  8— Continued. 

When  on  shore,  plundering,  abusing,  or  maltreat- 
ing any  inhabitant  or  injuring  his  property  by 
means  of — 
4.  Rape. 


5.  Burglary. 

6.  Robbery. 

7.  Arson. 

8.  Obscene  and  abusive  language. 

9.  Wilful  destruction  of  property. 


Refusing  or  failing  to  use  his  utmost  exertions  to 
detect,  apprehend,  and  bring  to  punishment  all 
offenders,  or  to  aid  all  persons  appointed  for  that 
purpose. 

When  rated  or  acting  as  master-at-arms  refuses  to 
receive  such  prisoners  as  may  be  committed  to  his 
charge,  or  having  received  them,  suffers  them  to 
escape  or  dismisses  them  without  orders  from  the 
proper  authority. 

Absent  from  station  and  duty  without  leave,  or  after 
his  leave  has  expired. 


Violating  or  refusing  obedience  to  any  lawful  general 
order  or  regulation  issued  by  the  Secretary  of  the 
Navy. 

Desertion  (in  case  of  surrender  to  naval  authorities). 


Desertion  (in  case  of  apprehension  or  delivery  to 
naval  authorities): 

1.  If  less  than  six  months  in  the  service. 

2.  If  more  than  six  months  in  the  service. 


Desertion: 

From  a  ship  about  to  sail  on  an  extended  cruise. 


When  joined  in  by  two  or  more  men  in  the  execu- 
tion of  a  conspiracy,  or  for  desertion  in  the 
presence  of  any  unlawful  assemblage-which  the 
naval  forces  may  be  opposing. 

Aiding  or  enticing  others  to  desert. 


Receiving  or  entertaining  any  deserter  from  any 
other  vessel  of  the  Navy,  knowing  him  to  be  such, 
and  not  with  all  convenient  speed  giving  notice  of 
such  deserter  to  the  commander  of  the  vessel  to 
which  he  belongs  or  to  the  commander-in-chief  or 
to  the  commander  of  the  squadron. 

UNDER  ARTICLE  9. 
Absent  from  command  without  leave. 


UNDER  ARTICLE  11. 


and 


Procuring  stores  or  other  articles  or  supplies  for 
disposing  thereof  to  officers  and  enlisted  men  on 
vessels  of  the  Navy,  or  at  any  yard  or  navalstation, 
for  his  own  account  or  benefit. 


4.  Officer:  Dismissal  and  imprisonment  at  hard 
labor  for  twenty  years. 

Enlisted  man:  Imprisonment  for  twenty  years  at 
hard  labor  and  dishonorable  discharge. 

5.  Officer:  Dismissal  and  imprisonment  at  hard 
labor  for  seven  years. 

Enlisted  man:  Imprisonment  at  hard  labor  for 


6.  Officer:  Dismissal  and  imprisonment  at  hard 
labor  for  seven  years. 

Enlisted  man:  Imprisonment  at  hard  labor  for 
seven  years  and  dishonorable  discharge. 

7.  Officer:  Dismissal  and  imprisonment  at  hard 
labor  for  ten  years. 

Enlisted  man:  Imprisonment  at  hard  labor  for  ten 
years  and  dishonorable  discharge. 

8.  Officer:  Public  reprimand. 

Enlisted  man:  Confinement  for  three  months. 

9.  Officer:  Dismissal. 

Enlisted  man:  Confinement  for  one  year  and  dis- 
honorable discharge. 

Officer:  Dismissal. 

Enlisted  man:  Confinement  for  one  year  and  dis- 
honorable discharge. 


Enlisted  man:  Confinement  at  hard  labor  for  five 
years  and  dishonorable  discharge. 


Officer:  Dismissal. 

Enlisted  man:  Confinement  for  six  months  and  dis- 
honorable discharge. 

Officer:  Dismissal. 

Enlisted  man:  Confinement  for  two  years  and  dis- 
honorable discharge. 

Officer:  Dismissal. 

Enlisted  man:  Confinement  for  eighteen  months 
and  dishonorable  discharge. 


Officer:  Dismissal  and  imprisonment  for  four  years. 

Enlisted  man:  1.  Confinement  for  eighteen  months 
and  dishonorable  discharge. 

2.  Confinement  for  two  and  one-half  years  and  dis- 
honorable discharge. 


Officer:  Dismissal   and   imprisonment   for    three 


Enlisted  man:  Confinement  for  three  years  and 
dishonorable  discharge. 

Officer:  Dismissal  and  imprisonment  for  five  years. 

Enlisted  man:  Confinement  for  five  years  and  dis- 
honorable discharge. 

Officer:  Dismissal  and  imprisonment  for  four  years. 
Enlisted  man:  Confinement  for  one  year  and  dis- 
honorable discharge. 

Officer:  Dismissal. 


Officer:  Dismissal. 

Enlisted  man:  Confinement  for  six  months  and 
dishonorable  discharge. 

Officer:  Dismissal. 

Enlisted  man:  Confinement  for  one  year  and  dis- 
honorable discharge. 


222 


INSTRUCTIONS  FOB  COURTS  AND  BOARDS. 


Limit  of  punishment. 


UNDER  ARTICLE  14. 

Presenting  or  causing  to  be  presented  to  any  person 
in  the  civil,  military,  or  naval  service  for  approval 
or  payment  any  claim  against  the  United  btates, 
or  any  officer  thereof,  knowing  said  claim  to  be 
false  or  fraudulent. 

Entering  into  any  agreement  or  conspiracy  to  defraud 
the  United  States  by  obtaining  or  aiding  others  to 
obtain  the  allowance  of  any  false  or  fraudulent 
claim. 

Making  or  using,  or  procuring  or  advising  the 
making  or  using,  of  any  writing  or  other  paper, 
.knowing  the  same  to  contain  any  false  or  fraud- 
ulent statement,  for  the  purpose  of  obtaining 
or  aiding  others  to  obtain  the  approval,  allow- 
ance, or  payment  of  any  claim  against  the 
United  States  or  against  any  officer  thereof. 

Making  or  procuring  or  advising  the  making  of 
any  oath  to  any  fact  or  to  any  writing  or  other 
paper,  knowing  such  oath  to  be  false,  for  the 
purpose  of  obtaining  or  aiding  others  to  obtain 
the  approval,  allowance,  or  payment  of  any 
claim  against  the  United  States  or  any  officer 
thereof. 

Forging  or  counterfeiting,  or  procuring  or  advising 
the  forging  or  counterfeiting,  of  any  signature  upon 
any  writing  or  other  paper,  or  using  or  procuring, 
or  advising  the  using  of  any  such  signature,  know- 
ing it  to  be  forged  or  counterfeited,  for  the  purpose 
of  obtaining  or  aiding  others  to  obtain  the  approval , 
allowance,  or  payment  of  any  claim  against  the 
United  States  or  any  officer  thereof. 

Knowingly  delivering  or  causing  to  be  delivered  to 
any  person  having  authority  to  receive  the  same 
any  amount  of  money  or  other  public  property  of 
the  United  States  furnished  or  intended  for  the 
naval  service  less  than  that  for  which  he  receives  a 
certificate  or  receipt. 

Knowingly  making  or  delivering  to  any  person  a 


having 

knowledge  of  the  truth  of  the  statement  therein 
contained  and  with  intent  to  defraud  the  United 
States. 


nance,  arms,  equipments,  ammunition,  clothing, 
subsistence  stores,  money,  or  other  property  ol  the 
United  States,  furnished  or  intended  for  the  mil- 
itary or  naval  service  thereof. 

Knowingly  purchasing  or  receiving  in  pledge,  for  any 
obligation  or  indebtedness  from  any  other  person 
who  is  a  part  of  or  employed  in  the  naval  service, 
any  ordnance,  arms,  equipment,  ammunition, 
clothing,  subsistence  stores,  or  other  property  of 
the  United  States,  such  other  person  not  having 
lawful  right  to  sell  or  pledge  the  same. 

Executing,  attempting,  or  countenancing  any  fraud 
against  the  United  States. 

UNDER  ARTICLE  19. 

Knowingly  enlisting  into  the  naval  service  any  per- 
son who  has  deserted  in  time-of  war  from  the  naval 
or  military  service  of  the  United  States,  or  any  in- 
sane or  intoxicated  person,  or  minor  between  the 
ages  of  14  and  18  without  the  consent  of  his  parents 
or  guardian,  or  any  minor  under  the  age  of  14. 


UNDEK  ARTICLE  22. 


Manslaughter. 


Officer:  Dismissal  and  imprisonment  for  five  years. 
Enlisted  man:  Confinement  for  five  years  and  dis- 
honorable discharge. 


Officer:  Dismissal  and  imprisonment  for  five  years. 
Enlisted  man:  Confinement  for  five  years  and  dis- 
honorable discharge. 


Officer:  Dismissal  and  imprisonment  for  five  years. 
Enlisted  man:  Confinement  for  five  years  and  dis- 
honorable discharge. 


Officer:  Dismissal  and  imprisonment  for  five  years. 
Enlisted  man:  Confinement  for  five  years  and  dis- 
honorable discharge. 


Officer:  Dismissal  and  imprisonment  for  five  years. 
Enlisted  man:  Confinement  for  five  years  and  dis- 
honorable discharge. 


Officer:  Dismissal  and  imprisonment  for  five  years. 
Enlisted  man:  Confinement  for  five  years  and  dis- 
honorable discharge. 


Officer:  Dismissal  and  imprisonment  for  five  years. 
Enlisted  man:  Confinement  for  five  years  and  dis- 
honorable discharge. 


Officer:  Dismissal  and  imprisonment  for  five  years. 
Enlisted  man:  Confinement  for  five  years  and  dis- 
honorable discharge. 


' 

Officer:  Dismissal  and  imprisonment  for  two  years. 
Enlisted  man:  Confinement  for  two  years  and  dis- 
honorable discharge. 


Officer:  Dismissal  and  imprisonment  for  two  years. 
Enlisted  man:  Confinement  for  two  years  and  dis- 
honorable discharge. 


Officer:  Dismissal. 


Officer:  Dismissal  and  imprisonment  at  hard  labor 

for  ten  years. 
Enlisted  man:  Imprisonment  at  hard  labor  for  ten 

years  and  dishonorable  discharge. 

•• 


INSTRUCTIONS  FOR   COURTS  AND  BOARDS. 


223 


Offers 


Limit  of  punishment. 


UNDER  ARTICLE  22— Continued. 
Assault  with  deadly  weapon  and  wounding. 

Rape. 

Robbery. 

Sodomy 


Lewd  or  indecent  behavior. 


Smuggling  liquor. 


Attempting  to  suborn  testimony  to  be  given  before 
court-martial. 


Neglecting    to     discharge     pecuniary     obligations 
(aggravated  case). 

False  swearing  or  perjury. 


Disorderly  conduct  (aggravated  case): 

1.  Assaulting  and  striking  another  person  in  the 

Navy. 

2.  Attempting  to  strike  and  assault  another  per- 

son in  the  Navy. 

3.  Disrespector  affront  to  sentinel. 

4.  Interfering  with  or  resisting  sentinel  in  lawful 

execution  of  his  duty. 


Striking  or  assaulting  a  sentinel. 

Refusing  obedience  to  lawful  orders  of  sentinel. 

Neglect  of  duty. 

Resisting  arrest. 

Enticing  a  prisoner  to  escape. 

Malingering. 

Refusing  to  give  testimony  before  a  court-martial. 

Behaving  contumaciously  before  a  board  or  court. 


Using  profane,  abusive,  and  threatening  language 
toward  his  superior  officer. 


Officer:  Dismissal  and  imprisonment  for  five  years. 
Enlisted  man:  Imprisonment  at  hard  labor  for  five 
years  and  dishonorable  discharge. 

Officer:  Dismissal  and  imprisonment  at  hard  labor 

for  twenty  years. 
Enlisted  man:  Imprisonment  at  hard  labor  for 

twenty  years  and  dishonorable  discharge. 

Officer:  Dismissal  and  imprisonment  at  hard  labor 

for  seven  years. 
Enlisted  man:  Imprisonment  at  hard  labor  for 

seven  years  and  dishonorable  discharge. 

Officer:  Dismissal  and  imprisonment  at  hard  labor 

for  fifteen  years. 
Enlisted  man:  Imprisonment  at  hard  labor  for  ten 

years  and  dishonorable  discharge. 

Officer:  Dismissal. 

Enlisted  man:  Confinement  for  one  year  and  dis- 
honorable discharge. 

Officer:  Loss  of  three  numbers  and  public  repri- 
mand. 

Enlisted  man:  Confinement  for  six  months  and  dis- 
honorable discharge. 

Officer:  Dismissal  and  imprisonment  for  five  years. 

Enlisted  man:  Confinement  for  three  years  arid  dis- 
honorable discharge. 

Officer:  Dismissal. 

Enlisted  man:  Confinement  for  six  months. 

Officer:  Dismissal  and  imprisonment  for  five  years. 
Enlisted  man:  Confinement  for  five  years  and  dis- 
honorable discharge. 

1.  Officer:  Dismissal. 

Enlisted  man:  Confinement  for  one  year  and  dis- 
honorable discharge. 

2.  Officer:  Dismissal. 

Enlisted  man:  Confinement  for  six  months  and  dis- 
honorable discharge. 

3.  Officer:  To  lose  five  numbers. 

Enlisted  man:  Confinement  for  three  months. 

4.  Officer:  Dismissal. 

Enlisted  man:  Confinement  for  one  year  and  dis- 
honorable discharge. 

Officar:  Dismissal  and  imprisonment  for  two  yaars. 
Enlisted  man:  Confinement  for  two  years  and  dis- 
honorable discharge. 

Officer:  Dismissal. 

Enlisted  man:  Confinement  for  one  year  and  dis- 
honorable discharge. 

Officer:  Dismissal. 

Enlisted  man:  Confinement  for  one  year  and  dis- 
honorable discharge. 

Officer:  Dismissal. 

Enlisted  man:  Confinement  for  one  year  and  dis- 
honorable discharge. 

Officer:  Dismissal  and  imprisonment  for  one  year. 
Enlisted  man:  Confinement  for  two  years  and  dis- 
honorable discharge. 

Officer:  Dismissal. 

Enlisted  man:  Confinement  for  one  year  and  dis- 
honorable discharge. 

Officer:  Dismissal. 

Enlisted  man:  Confinement  for  one  year  and  dis- 
honorable discharge.  ^ 

Officer:  Loss  of  ten  numbers. 

Enlisted  man:  Confinement  for  six  months. 

Officer:  Dismissal. 

Enlisted  man:  Confinement  for  two  years  and  dis- 
honorable discharge. 


224 


INSTRUCTIONS  FOR  COURTS  AND  BOARDS. 


Limit  of  punishment. 


UNDER  ARTICLE  22— -Continued. 
Mayhem. 

Malicious  or  willful  destruction  of  pu'olic  property. 

Attempting  to  desert. 
Answering  for  another  at  muster. 
Breaking  arrest. 

Conduct  unbecoming  an  officer  and  a  gentleman. 
Conduct  to  the  prejudice  of  good  order  and  discipline. 

Fraudulent  enlistment. 

Creating  a  disturbance  after  being  placed  in  arrest. 

Liquor  unlawfully  in  possession  on  board  ship,  in  a 
navy  yard,  naval  station,  or  garrison,  or  upon  re- 
turning to  the  same  (aggravated  case). 


Refusing  to  halt  when  challenged  by  noncommis- 
sioned officer  of  guard  or  sentinel. 


Using  profane,  obscene,  or  abusive  language  toward 
another  person  in  the  service. 


Officer:  Dismissal   and   imprisonment   for   three 

years. 
Enlisted  man:  Imprisonment  for  three  years  at 

hard  labor  and  dishonorable  discharge. 

Officer:  Dismissal  and  imprisonment  for  two  years. 
Enlisted  man:  Imprisonment  for  two  years  at  hard 
labor  and  dishonorable  discharge. 

Enlisted  man:  Confinement  for  six  months. 
Enlisted  man:  Confinement  for  six  months. 

Officer:  Dismissal. 

Enlisted  man:  Confinement  for  five  years  and  dis- 
honorable discharge. 

Officer:  Dismissal. 

Officer:  Dismissal  and  imprisonment  at  hard  labor 

for  fifteen  years. 
Enlisted  man:  Confinement  for  fifteen  years  and 

dishonorable  discharge. 

Enlisted  man:  Confinement  for  one  year  and  dis- 
honorable discharge. 

Enlisted  man:  Confinement  for  six  months. 

Officer:  Loss  of  three  numbers  and  public  repri- 
mand. 

Enlisted  man:  Confinement  for  six  months  and  dis- 
honorable discharge. 

Officer:  Dismissal. 

Enlisted  man:  Confinement  for  one  year  and  dis- 
honorable discharge. 


Officer:  Dismissal. 

Enlisted  man:  Confinement  for  one  year  and  dis- 
honorable discharge. 


X. 


NAVAL  ACADEMY  COURT-MARTIAL, 

(Act  of  June  23,  1874;  18  Stat.,  203.) 
(Act  of  March  2,  1895;  28  Stat.,  838.) 
(Act  of  March  3,  1903;  32  Stat.,  1198.) 
(Act  of  April  9,  1906;  34  Stat.,  104-105.) 


225 


. 


, 

• 

-'  oil}  lo 

• 

NAVAL  ACADEMY  COURT-MAKTIAL. 

, 

391.  When  and  how  convened. — The  Superintendent  of  the  Naval 
Academy  may,  in  his  discretion  and  with  the  approval  of  the  Secre- 
tary of  the  Navy,  cause  any  midshipman  in  the  said  academy  to  be 
tried  by  "court-martial"  for  the  offense  of  hazing.     (34  Stat.,  104.) 

392.  Constitution  of. — Such  "court-martial"  shall  be  composed  of 
"not  less  than  three  commissioned  officers"  (18  Stat.,  203)  as  mem- 
bers, and  a  commissioned  officer  shall  be  appointed  to  act  as  judge 

advocate^  {fildjad5  s  \0  surfoooiq  sift  ewollol 

393.  Sentence  which  may  be  imposed  by  such  court. — Such  "court- 
martial  "  has  discretion  as  to  the  sentence  to  be  imposed  upon  con- 
viction of  hazing.    It  may,  upon  such  conviction,  sentence  a  midship- 
man to  any  punishment  authorized  for  any  violation  or  breach  of 
the  rules  of  the  Naval  Academy,  or  to  dismissal  in  any  case,  and,  in 
addition  to  dismissal,  to  imprisonment  for  a  period  not  exceeding  one 
year  in  cases  of  "brutal  or  cruel"  hazing.     (34  Stat.,  104-105.) 

394.  Finding  and  sentence  subject  to  review. — Such  "  court-martial's  " 
findings  and  sentence  are  subject  to  review  by  the  convening  au- 
thority and  the  Secretary  of  the  Navy.     (34  Stat.,  105.)     In  cases 
where  suspension  or  dismissal  is  adjudged  it  is  advisable  that  the 
sentence  be  submitted  to  the  President  for  confirmation.     (See  file 
26283-925.) 

395.  Jurisdiction  of  Naval  Academy  court-martial  restricted  to  the 
offense  of  hazing. — The  statutes  authorizing  the  convening  of  Naval 
Academy   courts-martial   do   not   extend   the   jurisdiction   of   such 
"  courts-martial "  beyond  the  offense  of  hazing. 

396.  "  Hazing  "  denned  by  statute.— The  offense  of  "  hazing  "  shall 
consist  of  "  any  unauthorized  assumption  of  authority  b}^  one  mid- 
shipman over  another  midshipman  whereby  the  last-mentioned  mid- 
shipman shall  or  may  suffer  or  be  exposed  to  suffer  any  cruelty,  in- 
dignity, humiliation,  hardship,  or  oppression,  or  the  deprivation  or 
abridgment  of  any  right,  privilege,  or  advantage  to  which  he  shall 
be  legally  entitled."    (34  Stat.,  105.) 

397.  Trial  by  court-martial  not  mandatory  in  cases  of  hazing. — The 
Superintendent  of  the  Naval  Academy  may,  at  his  discretion,  deal 
with  the  offense  of  hazing  by  usual  disciplinary  measures  without  the 

227 


228  INSTRUCTIONS  FOR  COURTS  AND  BOARDS. 

intervention  of  a  "  court-martial."  But  such  measures  do  not  permit 
of  the  dismissal  of  any  midshipman  except  upon  written  charges 
by  the  superintendent,  an  opportunity  for  written  reply  by  the 
accused,  a  finding  by  a  "  board  of  inquiry  "  as  to  the  issues  of  fact, 
and  a  decision  by  the  Secretary  of  the  Navy  to  dismiss  the  accused, 
which  decision  must  have  the  "  written  approval  of  the  President." 
(34  Stat.,  104;  a  "board  of  inquiry"  as  used  herein  has  been  held 
to  mean  a  "court  of  inquiry."  File  26101-2,  Sec.  Navy,  Aug.  14, 
1909.) 

398.  Dismissal  for  a  single  act  of  hazing  requires  trial  by  court-mar- 
tial.— Proceedings  for  dismissal  without  trial  by  "  court-martial " 
can  not  be  had  for  a  "single  act  of  hazing."     (34  Stat.,  104.)     The 
accused  in  such  case  must  either  be  tried  by  "court-martial"  or 
punished  otherwise  than  by   dismissal.      (For  what   constitutes   a 
"  single  act  of  hazing  "  see  C.  M.  O.  31, 1915, 11.) 

399.  "  Court-martial "  follows  the  procedure  of  a  general  court-mar- 
tial.— A  Naval  Academy  "  court-martial "  follows  the  procedure  of 
a  general  court-martial.    (See  Ch.  IX.) 

400.  Midshipmen  may  be  tried  by  general  court-martial. — Midshipmen 
are  triable  by  general  court-martial,  convened  by  proper  authority 
in  accordance  with  the  limitations  and  conditions  applying  to  other 
trials  by  general  court-martial,  and  provided  that  sentences  of  sus- 
pension and  dismissal  must  be  confirmed  by  the  President  before 

being  carried  into  execution.     (28  Stat.,  838.) 

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XL 

SUMMARY  COURTS-MARTIAL. 


(A.  G.  N.  26-34  and  subsequent  statutory  enactments  quoted  there- 
under.) 


229 


• 
' 

SUMMARY  COURTS-MARTIAL. 


Page. 

Place  and  time  of  meeting. . .  231 

Convening  authority 231 

Constitution ; 232 

Precept 232 

Specifications. , 233 

The  members 234 

Senior  members 234 

The  recorder /. .  '. 234 

Accused 235 

Counsel  for  the  accused 235 

Clerk,  stenographer,  and  interpreter 235 

Orderly I  235 

Challenger 235 

Oaths 235 

Postponement 236 

Arraignment 236 

Preliminary  motions 236 

Pleas !• 237 

Witnesses v 237 

Statement  and  arguments 237 

Finding 237 

Record  of  previous  convictions 237 

The  sentence 237 

Recommendation  to  clemency 243 

Record  of  proceedings 243 

Revision 243 

Reviewing  authority 243 

Dissolution..  245 

. 


PLACE  AND  TIME  OF  MEETING. 

401.  Place  and  time  of  meeting. — See  sections  215-217  under  general 
courts-martial,  which  in  general  apply  to  summary  courts-martial. 
Hours  for  holding  sessions  of  a  summary  court-martial,  however, 
shall  be  selected  with  a  view  to  as  little  interference  with  the  per- 
formance of  routine  duties  as  the  administration  of  justice  and  the 
interests  of  the  accused  and  the  service  permit. 

CONVENING  AUTHORITY. 

402.  Who  may  order  summary  court — Upon  whom — For  what  of- 
fenses.— See  Article  26,  A.  G.  N.,  and  act  of  August  29,  1916,  quoted 
thereunder. 

231 


232  INSTRUCTIONS   FOB  COURTS  AND  BOARDS. 

403.  "  Commander  of  any  vessel "  construed. — The  words  "  commander 
of  any  vessel,"  as  used  in  Article  26,  A.  G.  X.,  have  been  construed  to 
include  a  warrant  officer  when  he  is  actually  commanding  a  naval 
vessel,  and  this  notwithstanding  the  fact  that  a  warrant  officer  (non- 
commissioned)  is  not  competent  to  serve  as  a  member  of  a  court- 
martial.     (C.  M.  O.  6, 1915,  5.) 

CONSTITUTION. 

• 

404.  Composition  of.— See  Article  27,  A.  G.  N.    The  provisions  of 
this  article  admit  of  a  commissioned  warrant  officer  being  ordered 
as  a  member  of  a  summary  court-martial.     (See  also  section  224,  and 
General  Order  296.) 

405.  For  trial  of  a  marine. — When  a  marine  is  to  be  tried  by  sum- 
mary court-martial,  one  or  more  marine  officers  shall,  if  practicable. 

be  detailed  as  members  of  the  court. 

• 

406.  Personnel  of  court. — It  is  desirable  that  care  be  exercised  in 

selecting  the  personnel  of  a  court,  so  that  no  reasonable  objection 
against  a  member  may  be  made  by  either  the  accused  or  the  recorder 
when  called  upon  to  exercise  the  right  of  challenge. 

407.  Deficiency  of  members — How  supplied. — When  a  trial  by  sum- 
mary court-martial  is  decided  upon,  and  a  sufficient  number  of  officers 
of  the  proper  rank  to  compose  Ijbe  court  are  not  under  the  command 
of  the  convening  authority,  the  latter  shall  request  the  senior  officer 
present  to  detail  the  additional  officers  necessary.    The  senior  officer 
present  shall,  if  practicable,  comply  with  such  request,  in  which  case 
he  shall,  orally  or  in  writing,  notify  the  officers  detailed.     (In  this 
connection  see  Navy  Regulations,  1913,  R-3910  (3).) 

408.  Changes  in  court. — The  provisions  of  section  225  in  regard  to 
changes  in  the  composition  oj  a  general  court-martial  apply  also  to 
a  summary  court-martial,  but .  ordinarily,  where  changes  are  neces- 
sitated in  the  composition  of  a  summary  court-martial,  a  new  precept 
should  be  issued. 

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409.  Precept.— The   precept   for   a   summary   court-martial   shall 
specify  the  personnel  of  the  court  and  the  time  and  place  of  meeting. 
The  convening  authority  shall  deliver  the  precept  to  the  senior  mem- 
ber and,  orally  or  in  writing,  notify  the  other  members  and  the 
recorder  of  their  appointment.     The  precept,  and  orders  altering 
the  same,  if  any  (see  sec.  408),  must  be  read  by  the  recorder  in  court 
in  the  presence  of  the  accused.     The  original  precept  shall  be  pre- 
fixed to  the  record  of  the  first  case  tried  thereunder,  and,  if  more 
than  one  case  be  tried  thereunder,  shall  be  referred  to  in  the  record 
of  each  case  subsequent  to  the  first. 


INSTRUCTIONS  FOE   COURTS  AND   BOARDS.  233 

THE  SPECIFICATIONS. 

(See  Chapter  VI.) 

410.  Accused  to  be  furnished  copy  of  specification (s)  before  trial, — As 
soon  as  practicable  after  it  has  been  decided  to  bring  him  to  trial, 
the  accused  shall  be  furnished  with  a  copy  of  the  specification(s) 
preferred  against  him.     After  he  has  received  this  copy  he  shall, 
before  he  is  brought  to  trial,  be  allowed  a  reasonable  time  to  pre- 
pare his  defense,  but  he  may  be  tried  at  any  time  after  he  announces 
in  open  court  that  he  is  ready  for  trial.    The  record  must  show,  by 
admission  of  the  accused  or  by  other  proof,  that,  at  a  stated  time 
prior  to  the  trial,  he  received  a  copy  of  the  specification  (s)  preferred 

against  him. 

& 

411.  Form  of  specification. — A  separate  specification  shall  be  used 
for  each  distinct  offense,  and  two  or  more  such  specifications  may  be 
joined  for  a  single  trial.    The  specimen  forms  for  specifications  set 
forth  in  Chapter  YI  shall  be  followed  in  the  preparation  of  specifi- 
cations for  summary  courts-martial,  except  that  the  specification 
shall  not  be  laid  under  any  particular  charge,  and  the  caption  shall 
read :  "  Specification  of  an  offense  preferred  against   A—      -  B. 
C ,  seaman,  U.  S.  Navy,"  or,  if  there  is  more  than  one  specifi- 
cation, "  Specifications  of  offenses,"  etc.    In  the  latter  case  the  several 
specifications  shall  be  paragraphed  and  consecutively  numbered,  as 
in   the   case  of   several   specifications  for  trial  by  general  courts- 
martial. 

412.  Offenses  triable  by  summary  court-martial. — Article  26,  A.  G.  N., 
makes  triable  by  summary  court-martial  offenses  committed  by  en- 
listed men  which  an  officer  empowered  to  order  a  summary  court- 
martial  "  may  deem  deserving  of  greater  punishment "  than  those 
prescribed  in  Article  24,  A.  G.  N.,  "  but  not  sufficient  to  require  trial 
by  general  court-martial."    So,  when  the  nature  of  an  offense  charged 
is  of  such  character  that  the  punishment  which  a  summary  court- 
martial  is  authorized  to  inflict  is  not  adequate  (see  art.  30,  A.  G.  N.), 
the  offender  should  be  brought  to  trial  before  a  general  court-martial, 
unless  it  is  impracticable  to  do  so.     In  this  connection  it  is  to  be 
noted  that  the  offense  of  "  fraudulent  enlistment,  and  the  receipt  of 
any  pay  or  allowance  thereunder^"  was,  by  statute,  declared  an  of- 
fense against  naval  discipline  and  made  punishable  by  general  court- 
martial  (27  Stat,  716).    Jurisdiction  over  this  offense,  therefore,  is 
expressly  limited  to  a  general  court-martial. 

413.  Specification(s)  to  be  prefixed  to  record. — The  original  specifi- 
cation (s)  shall  be  prefixed  to  the  record  in  each  case. 

414.  Must  be  pronounced  in  due  form  and  technically  correct. — See 
section  235  under  general  courts-martial,  which  applies  equally  to 
summary  courts-martial. 


234  INSTRUCTIONS  FOR   COURTS  AND  BOARDS. 

MEMBERS. 

415.  In  general. — Except  where  conflicting  with  the  following  sec- 
tion and  where  peculiar  to  a  general  court-martial,  the  provisions  in 
regard  to  "Members"  as  laid  down  under  general  courts-martial, 
sections  236-247,  apply  equally  to  summary  courts-martial. 

416.  Not  exempt  from  other  duties. — Summary  court-martial  duty 
shall  be  performed  in  addition  to  other  duties,  unless  the  convening 

•^  •  1  • 

authority  directs  otherwise. 

C1 

SENIOR  MEMBER. 

417.  Duties  in  general. — The  senior  member  of  a  summary  court- 
martial  corresponds  to  the  president  of  a  general  court-martial,  and 
the  general  duties  of  the  latter,  as  laid  down  in  sections  248-249, 
under  general  courts-martial,  apply  to  the  senior  member  of  a  sum- 
mary court-martial. 

When  a  summary  court-martial  meets  and  when  it  adjourns,  the 
senior  member  shall  cause  the  same  to  be  reported,  through  routine 
channels,  to  the  convening  authority. 

RECORDER. 

. 

418.  Who  may  act  as  such. — The  convening  authority  "may  order 
any  officer  under  his  command  to  act  as  recorder  of  a  summary  court- 
martial."     (27  A.  G.  N.) 

419.  Responsible  to  convening  authority. — An  officer  so  detailed  shall 
be  responsible  to  the  convening  authority  for  the  proper  performance 
of  his  duties  in  the  same  manner  as  he  is  responsible  for  the  perform- 
ance of  other  military  duties. 

420.  Not  subject  to  challenge. — The  recorder  is  not  subject  to  chal- 
lenge on  any  grounds. 

421.  General  duties. — The  recorder  corresponds  to  the  judge  advo- 
cate of  a  general  court-martial,  and  the  general  duties  of  the  latter, 
as  laid  down  in  sections  253-258,  apply  to  the  recorder  of  a  summary 
court-martial. 

422.  Summoning  witnesses. — The  recorder  shall  summon  all  wit- 
nesses both  for  the  prosecution  and  the  defense.    The  provisions  of 
sections  122  to  132  are  applicable  to  the  recorder  of  a  summary  court- 
martial,  as  well  as  to  the  judge  advocate  of  a  general  court-martial, 
except  that  the  statutory  authority  to  compel  the  attendance  of 
civilian  witnesses  within  the  jurisdiction  therein  specified  is  not  con- 
strued as  extending  to  summary  courts-martial.     The  attendance 
of  a  civilian  witness  before  a  summary  court-martial  is,  therefore, 
optional,  and  the  subpoena  for  same  should  not  include  mention  of  a 


INSTRUCTIONS   FOR   COURTS  AND  BOARDS.  235 

penalty  for  failure.  (See  p.  374.)  Such  witness  can  be  subpoenaed 
by  the  recorder  at  Government  expense  only  with  the  approval  of  the 
convening  authority,  and  the  approval  of  the  Secretary  of  the  Navy 
is  necessary  to  subpcena  such  witness  from  a  distance  which  would 
require  such  authority  if  the  attendance  of  the  witness  were  desired 
before  a  general  court-martial. 

ACCUSED. 

423.  To  be  present  in  open  court. — See  sections  263-264  under  general 
courts-martial,  which  are  applicable  to  the  accused  in  a  trial  by 
summary  court-martial. 

COUNSEL  FOR  THE  ACCUSED. 

424.  As  a  rule,  the  accused  should  secure  counsel  of  choice.    But 
when  an  accused  desiring  counsel  is  not  otherwise  provided,  applica- 
tion should  be  made  to  the  convening  authority  who  should  detail  a 
suitable  officer  to  act  as  such  counsel.    The  general  provisions  in  re- 
gard to  counsel  for  the  accused  laid  down  under  general  courts- 
martial,  sections  265-268,  apply  also  to  summary  courts-martial. 

CLERK,  STENOGRAPHER,  AND  INTERPRETER. 

425.  While  the  services  of  a  clerk,  stenographer,  or  interpreter  are 
not  ordinarily  required  before  a  summary  court-martial,  in  cases 
where  such  services  may  be  utilized  the  provisions  of  sections  269- 
273,  under  general  court-martial,  apply. 

ORDERLY. 

426.  At  the  request  of  the  senior  member  of  the  court,  the  conven- 
ing authority  shall  direct  an  orderly  to  be  detailed  to  attend  the  meet- 
ings of  the  court  and  execute  its  orders. 

CHALLENGE. 

427.  The  provisions  of  sections  277-282,  under  general   courts- 
martial,  apply  equally  to  the  right  of  challenge  in  summary  court- 
martial  cases. 

OATHS. 

428.  After  the  accused  has  announced  that  he  does  not  object  to 
any  member  of  the  court  each  member  and  the  recorder  shall  be 

26450°— 17 16 


236  INSTRUCTIONS  FOE  COURTS  AND  BOARDS. 

sworn.    The  recorder  shall  first  administer  the  following  oath  to  the 
members  : 

Oath  for  members. — "  You,  A.  B.,  C.  D.,  E.  F.,  do  swear  (or  affirm) 
that  you  will  well  and  truly  try,  without  prejudice  or  partiality,  the 
case  now  depending,  according  to  the  evidence  which  shall  be  ad- 
duced, the  laws  for  the  government  of  the  Navy,  and  your  own  con- 
science." (A.  G.  N.  28.) 

429.  The  senior  member  shall  then  administer  the  following  oath 
to  the  recorder : 

Oath  for  recorder. — "  You,  A.  B.,  do  swear  (or  affirm)  that  you  will 
keep  a  true  record  of  the  evidence  which  shall  be  given  before  this 
court  and  of  the  proceedings  thereof."  (A.  G.  N.  28.) 

430.  Each  witness  before  a  summary  court-martial  must,  prior  to 
giving  his  testimony,  be  sworn,  or  affirmed,  by  the  senior  member, 
as  follows: 

Oath  for  witnesses. — "  You  do  solemnly  swear  (or  affirm)  that  the 
evidence  you  shall  give  in  the  case  now  before  this  court  shall  be 
the  truth,  the  whole  truth,  and  nothing  but  the  truth,  and  that  you 
will  state  everything  within  your  knowledge  in  relation  to  the 
charges.  So  help  you  God  (or,  this  you  do  under  the  pains  and 
penalties  of  perjury)."  (A.  G.  N.  41.) 

431.  In  General. — For  oath   for   clerk,  stenographer,  interpreter, 
when  their  services  are  required  before  a  summary  court-martial, 
oath  on  a  voir  dire,  and  general  remarks  which  are  applicable  here, 
see  sections  287-290. 

POSTPONEMENT. 

432.  Proceedings  in  a  case  may  be  suspended  for  cause,  in  which 
event  a  new  case  or  other  business  before  the  court  may  be  taken  up. 
After  its  first  meeting,  a  summary  court-martial  shall  meet  at  the 
time  specified  at  adjournment,  or,  if  no  time  was  specified,  at  the  call 
of  the  senior  member,  unless,  in  either  case,  the  convening  authority 
directs  otherwise. 

ARRAIGNMENT. 

433.  After  the  court  has  been  organized  (sworn),  and  both  parties 
are  ready  to  proceed,  the  recorder- will  read  each  specification  sepa- 
rately, and  in  order,  to  the  accused  and  ask  him  how  he  pleads  to 
each,  "  guilty  "  or  "  not  guilty." 

434.  Trials  in  joinder. — See  section  293,  which  applies  to  trials  by 
summary  as  well  as  general  court-martial. 

PRELIMINARY  MOTIONS. 

435.  See  remarks  under  general  courts-martial,  sees.  294  to  300, 
which  apply  to  summary  courts-martial. 


INSTRUCTIONS   FOR   COURTS  AND  BOARDS.  237 

PLEAS. 

436.  See  remarks  under  general  courts-martial,  sees.  301  to  310, 
which  apply  to  summary  courts-martial. 

WITNESSES. 

437.  See  sections  122-177 ;  see  also,  in  connection  therewith,  section 
422,  and  note,  as  to  case  of  contempt,  on  p.  394. 

STATEMENT  AND  ARGUMENTS. 

438.  See  remarks  under  general  courts-martial,  sees.  311  to  317, 
which  apply  to  summary  courts-martial. 

FlNDIN 
• 

439.  Inasmuch  as  the  specification  for  a  trial  by  summary  court- 
martial  is  not  laid  under  any  charge,  so  much  of  the  provisions  of 
sections  318-325,  under  general  courts-martial,  as  refer  to  findings 
upon  the  charge  are  not  applicable  to  summary  court-martial  trials ; 
but  when  such  court  finds  a  specification  not  proved,  it  should  acquit 
the  accused  of  the  offense  specified.    With  this  exception  the  provi- 
sions of  the  above  sections  apply  to  the  findings  of  a  summary  court- 
martial.    See  also  in  this  connection  section  452. 

RECORD  OF  PREVIOUS  CONVICTIONS. 

440.  Sections  326  to  334,  setting  forth  when  and  how  the  record  of 
previous  convictions  is  to  be  introduced  before  a  general  court- 
martial,  apply  also  to  a  summary  court-martial. 

• 

THE  SENTENCE. 

441.  Authorized  punishments. — Summary  courts-martial  are  restricted 
in  their  sentences  to  the  punishments  specifically  authorized  in  article 
30,  A.  G.  N.,  as  affected  by  the  act  of  February  16,  1909,  section  8, 
quoted  thereunder.    The  effect  of  the  provision  of  said  act  authoriz- 
ing a  court  to  "  adjudge  either  a  part  or  the  whole,  as  may  be  appro- 
priate, of  any  one  of  the  punishments"  enumerated  in  article  30,  is 
construed  as  permitting  of  the  imposition  of  a  sentence,  under  article 
30,  involving  either  extra  police  duties  or  loss  of  pay  alone.     But 
care  must  be  taken  not  to  include  parts  of  two  or  more  punishments 
in  a  sentence.    Thus,  sentences  involving  confinement  on  bread  and 
water  or  on  diminished  rations  are  illegal  unless  it  is  expressly  pro- 
vided that  such  confinement  is  to  be  "  solitary,"  although  solitary 
confinement  may  be  adjudged  by  itself  without  diminished  rations. 
Also,  sentences  must  be  expressed  in  the  terms  used  in  article  30. 
Thus,  a  sentence  to  "  extra  duties  "  instead  of  "  extra  police  duties  " 


238  INSTRUCTIONS   FOR  COURTS  AND   BOARDS. 

is  illegal.  In  adjudging  adequate  punishment  within  the  limits  of 
their  statutory  authority,  courts  should  be  guided  by  the  schedule  of 
punishments  published  by  the  department  for  the  purpose  of  secur- 
ing uniformity  in  punishment.  (See  General  Order  No.  110  (re- 
vised).) 

442.  Loss  of  pay. — Loss  of  pay  should  be  expressed  in  dollars  and 
cents — not  days'  pay — and  should  be  based  upon  the  actual  pay,  not 
including  extras  for  mess  cook,  gun  pointer,  acting  coxswain,  etc. 
When  a  sentence  of  loss  of  pay  is  coupled  with  that  of  reduction  in 
rating,  care  shall  be  taken  to  insure  the  fact  that  the  loss  of  pay 
adjudged  is  based  on  the  pay  of  the  rating  to  which  the  accused  has 
been  reduced  and  not  on  his  original  rating. 

443.  Extra  police  duties. — Except  where  the  offender  is  serving  on 
a  receiving  ship  or  at  a  shore  station,  sentences  involving  extra  police 
duties  are,  as  a  general  rule,  undesirable,  but  this  will  not  be  con- 
strued as  prohibiting  the  imposition  of  this  sentence  on  board  ships 
on  which  circumstances  render  it  desirable. 

444.  Phraseology  to  be  employed  in  sentences  involving  confinement. — 
Where  the  legal  term  of  confinement  is  limited  to  "  30  days,"  the  exact 
phraseology  should  be  employed  in  adjudging  a  sentence  involving 
confinement  for  such  maximum  period.    A  sentence  of  "  solitary  con- 
finement for  one  month,"  for  example,  would  be  irregular  and  im- 
proper, as  the  article  quoted  above  prescribes  30  days  as  the  maxi- 
mum, whereas  one  month  might  be  in  excess  of  the  limit  so  fixed. 

445.  Meaning  of  "  confinement." — The  word  "  confinement,"  within 
the  meaning  of  Article  30,  A.  G.  N.,  imports  more  than  restriction  to 
a  ship  or  station.    The  punishment  of  "confinement  not  exceeding 
two  months,"  authorized  by  said  article,  is  intended  to  be  a  dif- 
ferent punishment  from  mere  deprivation  of  liberty  which  a  com- 
manding officer  is  authorized  to  inflict.     (C.  M.  O.  2,  1912,  11.)     An 
enlisted  man  in  confinement  should  therefore  be  kept  separate  from 
the  remainder  of  the  crew,  but  the  convening  authority  may,  at  his 
discretion,  extend  the  limits  of  confinement  during  working  hours 
or  at  other  times  that  he  may  deem  expedient. 

446.  Bread  and  water. — See  section  353,  under  general  courts-mar- 
tial, which  applies  to  summary  courts-martial. 

447.  Deprivation  of  liberty. — A  sentence  of  "  deprivation  of  liberty  " 
is  illegal,  unless  the  words  "  on  shore  on  foreign  station  "  are  added, 
and  the  court,  in  adjudging  such  sentence,  shall  not  exceed  the  limit 
of  three  months. 

448.  Disrating  for  incompetency. — Article  31,  A.  G.  N.,  gives  a  sum- 
mary court-martial  authority  to  disrate  for  incompetency.     (See,  in 
this  connection,  sec.  81.)     In  the  case  of  a  person  found  guilty  of 
incompetency,  the  sentence  of  disrating  is  mandatory,  and  it  is  the 

only  authorized  punishment  therefor. 

• 


INSTRUCTIONS  FOB  COURTS  AND  BOARDS.  239 

449.  Classification  for  disrating. — In  order  to  insure  uniformity  in 
the  reduction  in  rating  of  enlisted  men  by  sentence  of  summary 
courts-martial,  the  following  classification  of  the  petty  officers  and 
other  enlisted  men  in  the  Navy,  and  of  the  noncommissioned  officers, 
musicians,  and  privates  in  the  Marine  Corps,  arranged  in  each  case 
to  show  their  "next  inferior  rating"  shall  be  followed,  unless  the 
man's  current  enlistment  record  shows  that  he  was  promoted  to  his 
present  rate  from  some  inferior  rating  other  than  the  one  indicated 
by  the  table,  in  which  case  his  reduction  shall  be  to  the  inferior  rat- 
ing from  which  he  was  last  advanced,  and  it  shall  be  so  stated  in  the 
record  of  the  court. 


240 


INSTRUCTIONS   FOR  COURTS  AND  BOARDS. 


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INSTRUCTIONS  FOR  COURTS  AND  BOARDS. 
MESSMEN  BRANCH. 


RATING. 


Steward  or  cook. 
Mess  attendant,  first  class. 
Mess  attendant,  second  class. 
Mess  attendant,  third  class. 


MARINES. 


CLASS. 


RANK. 


Quar- 
termas- 

Leader 

ter  ser- 
geant; 

of 
band. 

First 
ser- 

Chief petty  officers. 

Ser- 
geant 
major. 

quar- 
termas- 
ter ser- 

geant; 
gun- 
nery 

Drum 
major. 

geant 

Second 

ser- 

(Pay 

leader 

geant. 

Depart- 

of 

ment). 

band. 

Petty  officers,  second  class. 

Sergeant. 

Principal 
musician. 

Petty  officers,  third  class. 

Corporal. 

Drum- 

Seamen, first  class. 

Private. 

mer; 
trump- 

Musician, 
first  class. 

eter. 

Musician, 

Seamen,  second  class. 

second 

class. 

Seamen,  third  class. 

Musician, 
third  class. 

450.  Method  of  arriving  at  sentence. — See  section  336,  under  general 
courts-martial,  which  applies  to  a  summary  court-martial. 

451.  Eecordation  and  authentication  of  sentence. — See  sections  354- 
356,  under  general  courts-martial,  which  apply  to  a  summary  court- 
martial. 

452.  Vote  or  opinion  of  individual  members  of  court  not  to  be  dis- 
closed.— In   the   matter   of   secrecy,   members   of   summary   courts- 
martial  are  governed  by  the  same  principle  which  applies  to  members 
of  general  courts-martial.     The  latter  are  sworn  not  to  "  divulge 
or  by  any  means  disclose  the  sentence  of  the  court  until  it  shall  have 
been  approved  by  the  proper  authority,"  and  not  at  any  time  to 
"  divulge  or  disclose  the  vote  or  opinion  of  any  particular  member 
of  the  court,  unless  required  so  to  do  before  a  court  of  justice  in  due 
course  of  law."     (A.  G.  N.  40.)     While  the  oath  administered  to 
members  of  a  summary  court-martial  contains  no  such  provision, 


INSTRUCTIONS  FOR  COURTS  AND  BOARDS.  243 

yet  the  same  reason  exists  for  requiring  the  members  of  a  summary 
court-martial  to  maintain  silence  as  to  the  sentence  of  the  court  prior 
to  its  approval  and  the  vote  or  opinion  of  any  particular  member 
of  the  court,  as  exists  for  such  requirement  on  the  part  of  members  of 
a  general  court-martial.  Therefore,  subject  to  the  exception  in  re- 
gard to  judicial  proceedings  noted  in  the  statute  prescribing  the 
oath  for  members  of  general  courts-martial,  the  vote  or  opinion  of 
each  member  of  a  summary  court-martial,  either  as  to  the  sentence  of 
the  court  or  as  to  any  other  matter,  should  not  be  disclosed. 

RECOMMENDATION  TO  CLEMENCY. 

453.  See  section  357,  under  general  courts-martial,  which  applies 
to  a  summary  court-martial. 

RECORD  OF  PROCEEDINGS. 

454.  See  chapter  VII  and  sections  358-365,  which,  except  where 
peculiar  to  general  courts-martial,  apply  to  the  record  of  a  summary 
court-martial ;  see  also  sections  463-464. 

455.  Conduct  of  proceedings  and  final  disposition  of  record. — See  article 
34,  A.  G.  N. 

REVISION. 

456.  In  general. — The  remarks  under  general  courts-martial,  sec- 
tions 372  to  381,  except  where  peculiar  to  general  courts-martial, 
apply  equally  to  summary  courts-martial. 

457.  Revision  by  a  different  court. — The  only  case  in  which  a  revision 
may  be  had  by  a  summary  court-martial  other  than  the  one  which 
sat  originally  is  where  the  medical  officer  certifies  that  the  execution 
of  the  original  sentence  would  be  seriously  injurious  to  the  health 
of  the  accused.    (See  A.  G.  N.,  33.)    In  such  a  case  the  new  court  is 
restricted  in  its  action  to  the  review  of  the  record  of  the  former  trial, 
and  a  redetermination  of  the  sentence.    No  further  testimony  shall  be 
admitted. 

REVIEWING  AUTHORITY. 

458.  In  general. — See  sections  383  to  386  under  general  courts- 
martial,  which  apply  also  to  summary  courts-martial. 

459.  Execution  of  sentence.— Article  32,  A.  G.  N.,  as  affected  by  the 
act  of  February  16,  1909,  section  17,  and  the  act  of  August  29,  1916, 
quoted  thereunder,  provides  for  the  execution  of  a  summary  court 
martial  sentence  upon  the  approval  of  the  "  immediate  superior  in 
command"  of  the  convening  authority,  except  that  where  the  con- 
vening authority  is  senior  officer  present  his  own  approval  is  suffi- 


UIO1I 


244  INSTRUCTIONS  FOR  COURTS  AND  BOARDS. 

cient.  (For  construction  of  "immediate  superior  in  command  "  see 
C.  M.  O.  30,  1916,  7-8.)  Upon  the  approval,  therefore,  of  the  con- 
vening authority,  and,  except  where  the  convening  authority  is  senior 
officer  present,  upon  the  further  approval  of  the  "  immediate  superior 
in  command,"  any  authorized  sentence  of  a  summary  court  martial, 
except  a  bad  conduct  discharge  in  certain  cases  as  noted  hereinafter, 
may  be  carried  into  execution  immediately.  But  enlisted  men  of 
both  the  Navy  and  Marine  Corps,  who  are  not  in  their  first  enlist- 
ments, shall  not  be  discharged  from  the  service  with  a  bad  conduct 
discharge,  in  accordance  with  the  sentence  of  a  summary  court  mar- 
tial, until  an  order  for  discharge  is  received  from  the  Bureau  of  Navi- 
gation or  the  Commandant  of  the  Marine  Corps.  Enlisted  men  of 
both  the  Navy  and  Marine  Corps,  however,  who  are  in  their  first 
enlistments,  may  be  so  discharged  without  the  above-mentioned 
order,  within  the  continental  limits  of  the  United  States,  and  men 
in  the  insular  force  sentenced  by  summary  court  martial  to  dis- 
charge with  a  bad-conduct  discharge  may  be  so  discharged  in  the 
Philippine  Islands,  Samoa,  or  Guam,  according  to  the  place  of  en- 
listment. Men  under  sentence  of  discharge  with  bad-conduct  dis- 
charge, and  on  board  of  a  vessel  about  to  proceed  to  a  port  outside 
of  the  United  States,  may,  upon  order  of  a  senior  officer  present,  be 
transferred  to  the  nearest  receiving  ship  or  marine  barracks,  accord- 
ing to  the  circumstances,  or  to  a  ship  remaining  in  port;  provided 
that  no  expense  for  travel  be  incurred  by  such  transfer,  and  that  the 
Bureau  of  Navigation  or  the  Commandant  of  the  Marine  Corps,  as 
the  case  may  require,  be  informed  thereof. 

460.  In  case  of  acquittal  or  disapproval  of  the  sentence. — In  cases 
where  the  accused  has  been  acquitted  by  the  court,  or  where  the 
sentence  has  been  disapproved  by  the  convening  authority,  the  record 
of  proceedings  shall  be  submitted  to  the  immediate  superior  in  com- 
mand in  the  same  manner  as  though  a  sentence  requiring  action  still 
remained. 

461.  Power  to  remit. — See  article  30,  A.  G.  N.,  and  act  of  February 
16,  1909,  section  9,  quoted  thereunder.     All  powers  of  mitigation 
vested  in  the  convening  authority  may  be  exercised  by  other  review- 
ing authority. 

462.  Exercise  of  mitigating  power. — In  connection  with  the  exercise 
of  the  power  to  mitigate  it  is  to  be  noted  that  so  much  of  a  sentence 
as  requires  confinement  to  be  solitary  or  on  diminished  rations  may 
be  remitted;  or,  in  sentences  involving  bread  and  water,  the  fre- 
quency of  full  rations  may  be  increased.    In  sentences  involving  a  bad 
conduct  discharge  together  with  a  loss  of  pay,  the  latter  should, 
whenever  necessary,  be  remitted  to  such  an  extent  as  to  leave  the 
discharged  man  sufficient  money  for  his  immediate  needs  after  his 
separation  from  the  service. 


INSTRUCTIONS   FOR   COURTS  AND  BOARDS.  245 

463.  Synopsis  of  conduct  spread  upon  record  when  bad  conduct  dis- 
charge is  adjudged. — In  every  case  where  a  sentence  involving  a  bad 
conduct  discharge  has  been  imposed,  it  shall  be  the  duty  of  the  officer 
ordering  the  court,  before  acting  upon  the  proceedings,  to  spread 
upon  the  record  a  brief  synopsis  of  the  service  of  the  person  tried 
and  the  offenses  committed  by  him  during  his  current  enlistment. 

464.  Order  to  the  pay  officer. — Records  of  the  proceedings  of  sum- 
mary courts-martial  and  deck  courts  shall  show,  over  the  signature 
of  the  pay  officer  having  the  accounts  of  the  accused,  that  the  loss 
of  pay,  if  there  be  any  adjudged  and  approved,  has  been  checked. 
In  order  to  enable  the  pay  officer  to  make  the  necessary  certificate, 
the  commanding  officer  shall  forward  with  the  record  the  requisite 
order  for  the  checkage;  such  order  shall  be  in  duplicate;  one  copy 
shall  be  sent  immediately  by  the  commanding  officer  direct  to  the 
Auditor  for  the  Navy  Department.     The  order  shall  contain  the 
following  information:  Name,  rate    (rank),  date  of  trial,  offense 
(briefly  stated),  and  sentence  as  finally  approved.     If  the  offense 
is  absence  over  leave  or  absence  without  leave,  the  dates  of  the 
beginning  and  ending  of  the  unauthorized  absence  should  be  stated. 
In  the  case  of  a  marine,  certificate  shall  be  made  by  the  commanding 
officer  of  the  marine  that  the  checkage  has  been  entered  in  the  service 
record  book,  or  on  the  pay  roll,  as  the  case  may  be. 

465.  Transcript  from  record. — Before  a  summary  court-martial  rec- 
ord is  transmitted  to  the  Judge  Advocate  General   (A.  G.  N.  34), a 
brief  transcript  shall  be  taken  therefrom  (except  in  case  of  acquittal) 
and  furnished  to  the  officer  of  the  deck  and  the  executive  officer  for 
entry,  respectively,  in  the  ship's  log  and  upon  the  service  record  of 
the  man  concerned.    In  the  case  of  a  marine  the  transcript  shall  be 
furnished  to  the  marine's  commanding  officer.    This  transcript  shall 
comprise —    • 

(1)  The  date  of  offense. 

(2)  The  nature  of  the  offense. 

(3)  Punishment  adjudged  as  approved  by  the  convening  and  the 
reviewing  authority. 

(4)  Date  of  such  approval. 

If  the  said  punishment  be  disapproved  or.  mitigated  subsequently 
by  the  department,  an  entry  to  that  effect  shall  be  made  as  soon  as 
notice  thereof  is  received.  If  bad  conduct  discharge  (of  a  man  not 
in  first  enlistment)  be  included  in  the  sentence,  the  final  action  in 
each  case  shall  be  similarly  entered.  The  transcript  and  entries  shall 
be  authenticated  by  the  signature  of  the  commanding  officer. 

DISSOLUTION. 

466.  The  court  is  dissolved  by  order  of  the  convening  authority. 
This  order  may  be  oral. 


. 
. 


XII. 

DECK  COURTS. 

(Act  of  February  16,  190.9;  35  Stat.,  621, 
quoted  on  pp.  45-46.) 


247 


. 


. 


DECK  COURTS. 


Page. 

Convening  authority 249 

Constitution 249 

Specifications 250 

Deck  court  officer 250 

The  recorder 250 

Accused •  251 

Oaths 251 

Postponement 251 

Procedure 251 

Finding 252 

Previous  convictions 252 

Sentence 252 

Reviewing  authority 252 

Record  of  proceedings ....-: 253 


CONVENING  AUTHORITY. 

467.  Who  may  order  deck  court — Upon  whom — And  for  what  offenses.— 
See  act  of  February  16,  1909,  section  1,  as  affected  by  that  part  of 
the  act  of  August  29,  1916,  which  is  quoted  thereunder  on  page  45. 

CONSTITUTION. 

468.  Constitution  of  court.— See  act  of  February  16,  1909,  section  2, 
quoted  on  page  45.    See  also  General  Order  296.    The  order  consti- 
tuting the  court  shall  be  in  writing,  except  as  noted  in  the  following 
section. 

469.  Who  may  act  as  deck  court  officer. — Officers  shall  not  be  ordered 
as  deck  court  officers  who  are  below  the  rank  of  lieutenant  in  the 
Navy  or  captain  in  the  Marine  Corps,  except  that,  in  cases  where 
there  is  no  officer  of  such  rank,  or  of  higher  rank,  attached  to  the 
vessel,  navy  yard,  station,  or  command,  the  commanding  officer  (if  a 
commissioned  officer)  may  act  as  deck  court  officer.    An  officer  em- 
powered to  order  deck  courts  shall  not  designate  himself  for  this 
duty  unless  he  is  the  only  commissioned   officer   attached  to  the 
vessel,  navy  yard  or  statron,  or  command,  or  unless  the  subordinate 
officers  are  below  the  specified  rank,  in  which  cases  he  shall  con- 
stitute the  deck  court  and  finally  determine  the  cases  tried  by  him, 

249 


250  INSTRUCTIONS  FOB  COURTS  AND  BOARDS. 

and  no  order  appointing  the  court  need  be  issued,  but  the  officer 
in  question  shall  enter  on  the  record  that  he  is  "the  only  officer  (of 
the  required  rank)  attached  to  the  vessel  (navy  yard)  (naval 
station)  (present  with  the  command)."  When  the  commanding 
officer  is  not  of  or  above  the  rank  of  lieutenant,  and  when  there  are 
other  officers  attached  to  the  command  who  are  not  of  or  above  the 
rank  of  lieutenant,  the  proper  entry  for  the  commanding  officer  who 
acts  as  deck  court  officer  to  enter  on  the  record  is  the  following :  "  The 
only  officer  attached  to  the  vessel  (or  command)  authorized  to  act  as 
deck  court  officer." 

SPECIFICATIONS. 

470.'  What  specification  must  state. — The  specification  for  a  deck 
court  should  be  brief,  but  in  each  specification  it  is  necessary  to  set 
forth:  (a)  The  name  and  rate  of  the  accused;  (b)  the  offense  and 
date  of  commission  thereof;  (c)  all  material  facts  connected  with  the 
offense.  While  the  specification  for  a  deck  court  may  be  less  formal 
than  that  for  a  summary  or  general  court-martial,  yet  the  general 
principles  set  forth  in  Chapter  VI,  except  such  as  refer  to  the  charge, 
apply.  In  every  case  the  convening  authority  should  take  care  to 
see  that  the  statement  of  facts  of  the  alleged  offense,  as  set  forth 
therein,  actually  constitutes  a  legal  offense,  and  that  the  offense  is 
set  forth  clearly  and  explicitly,  and  is  not  left  to  be  implied. 

471.  Offenses  triable  by  deck  court. — The  jurisdiction  of  a .  deck 
court  is  expressly  limited  to  "minor  offenses."     (Act  of  Feb.  16, 
1909,  sec.  1,  quoted  on  p.  45.) 

DECK  COURT  OFFICER. 

472.  Not  sworn. — The  officer  constituting  a  deck  court  is  not  sworn, 
as  he  performs  his  duty  under  the  sanction  of  his  oath  of  office. 

473.  Duties  of. — The  deck  court  officer  conducts  the  trial.    He  sum- 
mons witnesses,  if  any.     (See  sec.  422.)     He  administers  the  oath  to 
the  recorder  and  witnesses  and  conducts  the  examination  of  the  latter. 
(See  sec.  437.)     He  records  the  finding  and  sentence  and  signs  the 
record.     (See  sec.  469.)    The  deck  court  officer  shall  not  be  a  witness 
either  for  the  prosecution  or  for  the  defense. 

THE  RECORDER. 

474.  Personnel  of. — See  act  of  February  16,  1909,  section  3,  quoted 
on  page  45. 

475.  Sworn  to  keep  true  record. — The  recorder  shall  be  sworn  to 
keep  a  true  record  of  the  proceedings  of  a  deck  court.     He  is  not 
empowered  to  conduct  any  examination,  of  witnesses. 


INSTRUCTIONS  FOR  COURTS  AND  BOARDS.  251 

ACCUSED. 

476.  Consent  of  accused  necessary. — When  an  enlisted  man  is  brought 
before  the  deck  court  for  trial  he  shall  signify  his  willingness  to  be  so 
tried  by  affixing  his  signature  to  a  statement  to  that  effect  in  the 
record.     If  he  objects  to  being  so  tried,  "trial  shall  be  ordered  by 
summary  or  general  court-martial  as  may  be  appropriate."     (Act  of 
Feb.  16,  1909,  sec.  7.)     But  refusal  of  trial*  by  deck  court  shall  not  be 
mentioned  in  the  record  of  such  latter  court.     (C.  M.  O.  24,  1909,3.) 

477.  Eight  to  appeal. — See  section  492. 

OATHS.  ••.•umifeinirS  .*8* 

478.  The  deck  court  officer  shall  administer  to  the  recorder  the  same 
oath  as  prescribed  for  the  recorder  of  a  summary  court-martial : 

Oath  for  recorder. — "  Yon,  A.  B.,  do  swear  (or  affirm)  that  you  will 
keep  a  true  record  of  the  evidence  which  shall  be  given  before  this 
court  and  of  the  proceedings  thereof."  (A.  G.  N.  28.) 

479.  Each  witness  before  a  deck  court  must,  prior  to  giving  his 
testimony,  be  sworn  by  the  deck  court  officer  as  follows : 

Oath  for  witnesses. — "  You  do  solemnly  swear  (or  affirm)  that  the 
evidence  you  shall  give  in  the  case  now  before  this  court  shall  be 
the  truth,  the  whole  truth,  and  nothing  but  the  truth,  and  that  you 
will  state  everything  within  your  knowledge  in  relation  to  the 
charges.  So  help  you  God  (or,  this  you  do  under  the  pains  and 
penalties  of  perjury)."  (A.  G.  N,41.) 

.donsixi98  lo  noft  1/09x3  .88£ 

POSTPONEMENT. 

.  480.  The  officer  ordering  the  court  shall  determine  when  cases  will 
be  brought  to  trial;  but,  whenever  practicable,  the  trial  shall  take 
place  within  48  hours  after  the  offense  is  committed. 

. 

PROCEDURE. 

481.  The  general  provisions  laid   down  in  Chapter  XI   and  the 
procedure  as  to  the  arraignment,  pleading,  and  conduct  of  a  trial  by 
summary   court-martial   therein   prescribed,   shall,   in   general    and 
where  not   inconsistent   with   the   present   chapter,   apply  to   deck 
courts.     In  taking  down  testimony  adduced  before  a  deck  court, 
however,  the  facts  established  by  the  testimony  only  need  be  re- 
corded, and  the  same  shall  be  submitted  to  the  convening  authority 
on  a  separate  sheet. 

FINDING. 

482.  To  be  in  handwriting  of  deck  court  officer. — The  finding  should 
never  be  typewritten,  but  shall  be  in  the  handwriting  of  the  deck' 
court  officer.    See  section  439  under  summary  courts-martial,  which 
applies  to  deck  courts. 

26450°— 17 17 


252  INSTRUCTIONS  FOR  COURTS  AND  BOARDS. 

PKEVIOUS  CONVICTIONS. 

483.  Cases  submitted  for  trial  by  deck  court  shall  be  accompanied 
by  record  of  previous  convictions,  or  by  a  statement  to  the  effect  that 
none  such  exists.    When  previous  convictions  are  considered  in  deter- 
mining the  sentence,  a  note  to  that  effect  shall  be  entered  upon  the 
record.     (For  convictions  which  may  be  considered  in  this  connec- 
tion, see  sees.  327-329. ) 

« 

THE  SENTENCE. 

484.  Punishments  which  may  be  imposed. — See  act  of  February  16, 
1909,  section  2,  quoted  on  page  45.    In  computing  20  days'  loss  of  pay, 
fractions  of  a  cent;  as  shown  by  the  Navy  pay  tables,  will  be  disre- 
garded, and  the  lower  whole  number  chosen  as  20  days'  pay.     See 
sections  441  to  449,  under  summary  courts-martial,  which,  in  gen- 
eral and  where  consistent  with  the  statutory  restrictions  on  the  pun- 
ishments which  a  deck  court  may  impose,  apply  to  the  sentences  of 
deck  courts.    Delay  in  the  trial  of  an  accused  may  be  considered  by 
a  deck  court  in  adjudging  sentence. 

485.  The  sentence  to  be  in  the  handwriting  of  the  deck  court  officer. — 
The  sentence  shall  never  be  typewritten,  but  shall  be  in  the  hand- 
writing of  the  deck  court  officer. 

REVIEWING  AUTHORITY. 

486.  Execution  of  sentence. — Upon  the  approval  of  the  officer  con- 
vening a  deck  court,  or  his  successor  in  office,  the  sentence  may  be 
carried  into  effect.     (Act  of  Feb.  16,  1909,  sec.  4,  quoted  on  p.  45.)  , 
When,  in  accordance  with  the  provisions  of  section  469,  the  officer 
empowered  to  order  deck  courts  himself  acts  as  deck  court,  the  sig- 
nature of  such  officer  upon  the  record  is  sufficient  without  special 
notation  of  approval. 

487.  Power  to  rtmit. — See  act  of  February  16, 1909,  section  4,  quoted 
on  page  45. 

488.  Order  to  pay  officer. — See  section  464,  under  summary  courts- 
martial,  which  applies  also  to  cases  in  which  a  deck  court  adjudges 
a  loss  of  pay. 

489.  Transcript  for  log  and  record. — A  transcript  of  a  trial  by  deck 
court  shall  be  made  and  furnished  for  the  log  and  record  of  the  man 
tried  as  in  the  case  of  a  trial  by  summary  court-martial.     (See  sec. 
465.) 

RECORD  or  PROCEEDINGS. 

•  490.  Certificate  of  medical  officer. — See  section  364,  which  applies 
also  to  cases  in  which  a  deck  court  sentences  a  man  to  solitary  con- 
•finement  on  diminished  rations  for  a  period  exceeding  10  days. 
491.  Certificate  of  pay  officer.— See  section  464. 


INSTRUCTIONS  FOR  COURTS  AND  BOARDS.  253 

492.  Disposition  of  record. — The  record  of  a  deck  court  shall,  when 
completed,  be  at  once  forwarded  by  the  convening  authority  to  the 
Judge  Advocate  General.     Should  the  accused  desire  to  make  an 
appeal  to  the  Secretary  of  the  Navy  within  the  period  of  30  days, 
as  prescribed  by  law  (act  of  Feb.  16,  1909,  sec.  6,  quoted  on  p.  46), 
such  statement  as  he  may  wish  to  make  shall  be  submitted  in  writing 
and  appended  to  the  record  of  testimony,  separately  therefrom,  and 
shall  be  forwarded  therewith  to  the  Navy  Department  (office  of  the 
Judge  Advocate  General).     As  the  Secretary  of  the  Navy  reviews 
such,  appeal,  no  action  by  any  intermediate  authority  is  required. 

493.  Testimony  to.  be  forwarded  only  in  cases  of  appeal. — Except  in 
cases  of  appeal  separate  sheets  containing  the  testimony  of  witnesses 
called  in  a  deck  court  should  not  be  forwarded  to  the  department  as 
a  part  of  such  records,  as  the  testimony  thus  recorded  is  intended 
only  for  the  guidance  of  the  convening  authority  in  his  approval  or 
disapproval  of  the  finding  and  sentence.     (C.  M.  O.  29, 1914,  3.) 


lo 


. 


•• 


XIII. 


COURTS  OF  INQUIRY. 

(A.  G.  N.,  55  to  60,  and 

subsequent  statutory  enactments 

cited  thereunder.) 


255 


.nrz 


A) 

. 


COURTS  OF  INQUIRY. 

Page. 

When  convened 257 

Convening  authority. . 258 

Constitution _ 238 

Precept 259 

The  president 251J 

The  judge  advocate 260 

Parties  to  the  inquiry : 200 

Clerk,  stenographer,  interpreter — Orderly 261 

Procedure 261 

Oaths 263 

Findings  and  opinion il „  263 

Record  of  proceedings 264 

Revision 265 

Reviewing   authority 265 

Dissolution..  265 

. 

Inquiry  into  the  loss  or  grounding  of  a  ship 265 

H         J 


WHEN  CONVENED. 

494.  Purpose. — In  important   cases,  where  the   facts  are  various 
and  complicated,  where  there  appears  to  be  ground  for  suspecting 
criminality,  or  where  crime  has  been  committed,  or  much  blame 
incurred  without  any  certainty  on  whom  it  ought  chiefly  to  fall, 
a  court  of  inquiry  affords  the  best  means  of  collecting,  sifting, 
and  methodizing  information  for  the  purpose  of  enabling  the  con- 
vening authority  to  decide  upon  the  necessity  and  expediency  of 
further  judicial  proceedings.     But  the  proceedings  of  a  court  of 
inquiry  are  in  no  sense  a  trial  of  an  issue  or  of  an  accused  person. 
The  court  performs  no  real  judicial  function;  it  is  convened  only 
for  the  purpose  of  informing  the  convening  authority  in  a  pre- 
liminary way  as  to  the  facts  involved  in  the  inquiry.     (C.  M.  O.  7, 
1914  6  ) 

495.  When  to  be  convened. — Officers  so  empowered  are  expected, 
on  the  occurrence  of  any  matter  serious  enough  in  their  judgment 
to  require  thorough  investigation,  to  order  a  court  of  inquiry  as 
soon  as  practicable.    Among  such  occurrences  are  included  the  fol- 
lowing : 

496.  Accident  involving  loss  of  life. — Whenever  an  accident  involv- 
ing loss  of  life  of  any  person  or  persons  occurs  on  board  a  vessel  of 
the  Navy,  at  a  navy  yard  or  naval  station,  or  elsewhere  within  the 
jurisdiction  of  the  Navy  Department,  or  whenever  such  accident 

257 


258  INSTRUCTIONS  FOR   COURTS  AND  BOARDS. 

occurs  elsewhere  and  it  is  possible  that  any  person  in  the  naval 
service  is  in  any  degree  responsible  therefor,  a  court  of  inquiry  shall 
be  ordered  to  investigate  fully  and  report  upon  the  circumstances 
connected  therewith  and  to  give  an  opinion  in  regard  thereto.  This 
court  of  inquiry  shall  be  in  addition  to  the  board  of  inquest  pre- 
scribed in  section  596.  The  court  of  inquiry  shall  in  every  such  case 
ascertain  whether  the  loss  of  life  was  due  in  any  manner  to  the  fault, 
negligence,  or  inefficiency  of  any  person  or  persons  in  the  naval 
service  or  connected  therewith ;  and,  if  so,  the  names  of  such  person 
or  persons,  and  to  what  extent  the  fault,  negligence,  or  inefficiency 
thereof  contributed  to  the  accident  or  to  the  results  thereof.  In 
every  case  where  the  deceased  was  in  the  naval  service  or  connected 
therewith,  the  court  shall  carefully  investigate  and  state  in  the  record 
whether,  in  its  opinion,  his  death  was  due  to  disease  contracted,  or 
casualties  or  injuries  received  while  in  the  line  of  his  duty  and  not 
the  result  of  his  own  misconduct ;  and  the  court  shall  set  forth  fully 
the  reasons  for  its  conclusion.  (See  sees.  609-613  defining  "line  of 
duty"  and  "misconduct.")  The  flag  officer,  commandant,  or  senior 
officer  present  shall  at  once  order  the  board  of  inquest  when  such  an 
accident  occurs,  and,  if  authorized  by  law  to  do  so,  the  court  of 
inquiry  prescribed  by  this  section.  If  he  is  not  empowered  to  order 
a  court  of  inquiry,  he  shall  immediately  forward  the  report  of  the 
board  of  inquest  to  the  next  superior  in  command  who  is  so  empow- 
ered, who  will  convene  the  requisite  court  of  inquiry  as  soon  there- 
after as  practicable. 

497.  Cases  involving  serious  damages. — Officers  so  empowered  shall 
cause  investigation  to  be  made  by  a  court  of  inquiry  of  all  serious 
cases  of  collision,  grounding,  fire,  accidents  to  hull,  spars,  machinery, 
and  boilers,  or  other  important  casualties  which  they  deem  necessary 
to  be  investigated.     (See  sees.  546-554  for  cases  involving  the  loss 
or  grounding  of  a  ship.)     And  they  shall  also  cause  investigation 
to  be  made  by  a  court  of  inquiry  of  any  marked  deficiency  affecting 
the  battle  efficiency  of  a  vessel  under  their  command  or  its  readiness 
for  service.    When,  under  the  circumstances  set  forth  herein,  a  court 
of  inquiry  can  not  be  convened,  a  board  of  investigation  must  be 
ordered.    (See  Chap.  XVI.)       ^nO—.^nsvnoo  so*  ot  narfW 

CONVENING  AUTHORITY. 

ai   }o  j" 

498.  Who  may  order. — See  article  55,  A.  G.  N.,  as  affected  by  the 

act  of  August  29,  1916,  quoted  thereunder. 

OoN^TTTTTTTrVfr  "%K-ivlQViii  tnsbiooA 

^}i[  lo 

499.  Constitution.— See  article  56,  A.  G.  N. 

500.  Rank  and  corps  of  members. — The  composition  of  the  court, 
both  in  regard  to  the  rank  of  its  members  and  the  corps  to  which  they 


INSTRUCTIONS -FOR  COURTS  AND  BOARDS.  259 

belong,  shall  be  regulated  by  the  circumstances  to  be  inquired  into. 
In  case  the  conduct  or  character  of  an  officer  may  be  implicated  in 
the  investigation,  no  member  of  the  court  shall,  if  practicable,  be  his 
junior  in  rank.  And  should  such  officer  not  be  of  the  line,  it  is 
proper,  if  the  exigencies  of  the  service  permit,  that  one  or  more  offi- 
cers of  the  corps  to  which  he  belongs  be  detailed  for  duty  on  the  court. 

501.  Less  than  three  members  may  legally  constitute  a  court  of  in- 
quiry.— The  provision  of  article  56,  A.  G.  N.,  that  "  a  court  of  inquiry 
shall  consist  of  not  more  than  three  commissioned  officers  as  members  " 
is  not  construed  as  requiring  three  members  to  constitute  such  court. 
Courts  of  inquiry  consisting  of  but  one  member  have  been  held  to  be 
legally  constituted.    (See  Ct.  Inq.  Rec.  No.  5864;  6333.)    But,  should 
the  number  of  members  named  in  the  order  convening  the  court  be 
reduced,  the  court  can  not  proceed  without  authority  from  the  officer 
who  convened  it. 

502.  Challenge  of  a  member. — A  member  of  a  court  of  inquiry  may 
be  challenged  for  cause  by  any  party  to  the  inquiry.     (See  sec.  523.) 

PRECEPT. 

503.  The  precept  of  a  court  of  inquiry  shall,  in  addition  to  naming 
the  membership  of  the  court  and  setting  the  time  and  place  of  meet- 
ing, state  clearly  and  concisely  the  matter  that  is  to  be  inquired 
into  and  shall  contain  explicit  instructions  as  to  what  the  report  of 
the  court  thereon  shall  include  and  as  to  any  other  matters  relative 
to  the  procedure  of  the  court  regarding  which  instructions  are  deemed 
necessary.    Neither  the  record  of  a  board,  previously  held  in  refer- 
ence to  the  same  subject  matter,  nor  papers  of  any  kind  shall  be  at- 
tached to  or  made  a  part  of  the  precept  of  a  court  of  inquiry.    Such 
records  or  papers  may,  however,  as  a  separate  matter,  be  sent  to  the 
judge  advocate  for  the  purpose  of  assisting  him  to  bring  out  all  the 
facts  in  regard  to  the  matter  under  inquiry.     The  precept  of  such 
court  shall  also  specifically  name,  as  defendants  and  interested  par- 
ties, all  persons  who  appear  to  be  such  from  the  outset.     (See  sec. 
539.) 

THE  PRESIDENT. 

504.  Duties  of. — It  is  the  duty  of  the  president  of  a  court  of  inquiry 
to  administer  the  oath  to  the  judge  advocate  and  to  the  witnesses,  to 
preserve  order,  to  decide  upon  matters  relating  to  the  routine  of  busi- 
ness, and  to  adjourn  the  court  as,  in  his  judgment,  will  be  most  con- 
venient and  proper  for  the  transaction  of  the  business  before  it ;  but 
should  objection  be  made  by  any  member  of  the  court  to  an  adjourn- 
ment announced  by  the  president,  the  question  shall  be  submitted  to 
and  decided  by  the  court. 


260  INSTRUCTIONS  FOB  COUNTS  AND  BOARDS. 

THE  JUDGE  ADVOCATE. 

505.  Duties  of. — It  is  the  duty  of  the  judge  advocate  of  a  court  of 
inquiry — 

(a)  To  summon  all  the  witnesses  required  for  the  investigation 
and  to  lay  before  the  court  a  list  of  them.     (See  sees.  122-132.) 

(b)  To  administer  the  oath  or  affirmation  to  the  members  of  the 
court. 

(c)  To  record  the  proceedings  of  the  court  under  its  direction  and 
control,  and  to  make  up  the  record.     (See  Chap.  VII.) 

(d)  To  conduct  the  examination  of  witnesses.    (See  sees.  133-177.) 

(e)  To  assist  the  court  in  systematizing  the  information  it  may 
receive,  to  minute  in  the  proceedings  the  opinion  of  the  court,  if 
called  fo#,  and  to  render  to  the  court  such  assistance  as  will  enable 
it  to  lay  all  the  circumstances  of  the  case  before  the  convening 
authority  in  a  clear  and  explicit  manner. 

(/)  In  conjunction  with  the  president  of  the  court,  to  authenticate 
the  proceedings  by  his  signature. 

(g)  In  general  he  is  the  prosecutor  of  the  case  and  is  responsible 
for  bringing  out  all  the  facts. 

PARTIES  TO  THE  INQUIRY. 

506.  Complainant. — When  a  court  of  inquiry  is  ordered  to  inquire 

,  into  the  facts  in  connection  with  the  accusations  or  complaint  made  by 
any  person  to  the  convening  authority,  such  person  is  known  as  the 
complainant  and  may  be  allowed  to  remain  in  court  during  the  in- 
quiry and  make  suggestions  to  the  judge  advocate. 

507.  Defendant  and  interested  party. — A  person  whose  conduct  is 
the  subject  of  investigation  before  a  court  of  inquiry  is  a  defendant 
to  the  proceedings  of  such  court ;  a  person  against  whom  there  stands 
no  accusation  but  who  may  become  involved  or  may  be  otherwise 
interested  in  the  outcome  of  such  investigation  is  an  interested  party 
thereto.    Should  it  at  any  time  during  the  course  of  the  inquiry  ap- 
pear that  an  interested  party  becomes  involved  in  such  a  way  that 
an  accusation  against  him  may  be  implied,  it  is  the  duty  of  the  court 
to  inform  such  party  that  his  status  has  changed  to  that  of  defend- 
ant.   It  is  the  right  of  both  a  defendant  and  an  interested  party  to 
be  present  at  the  inquiry. 

508.  Counsel  or  friends  to  parties  allowed  to  be  present. — The  com- 
plainant and  all  defendants  or  interested  parties  before  a  court  of 
inquiry  may  be  allowed  to  have  friends  or  counsel  present  during 
open  court. 

509.  Officer  or  enlisted  man  under  investigation  may  be  excused  from 
duty. — An  officer  or  enlisted  man  whose  conduct  is  to  be  investigated 
by  a  court  of  inquiry  need  not  necessarily  be  held  in  detention  for 


INSTRUCTIONS  FOR  COURTS  AND  BOARDS.  261 

that  purpose.  He  may,  however,  if  necessary,  at  his  own  request,  be 
excused  by  his  superior  or  commanding  officer  from  other  duty 
during  such  an  investigation. 

510.  Duty  of  convening  authority  to  parties  to  inquiry. — The  conven- 
ing authority  should  cause  to  be  notified  the. complainant   (if  any) 
and  any  persons  who  appear  from  the  outset  to  be  defendants  or 
interested  parties  to  the  inquiry  of  their  right  to  be  present  during 
the  investigation. 

511.  When  proceedings  indicate  interested  parties. — If  it  should  ap- 
pear at  any  stage  of  the  proceedings  of  a  court  of  inquiry  that  any 
person  or  persons,  not  named  as  interested  parties  or  defendants  from 
the  outset,  are  implicated  in  the  matter  under  investigation  in  such  a 
way  as  to  make  them  interested  parties  or  defendants  thereto,  they 
should  be  called  before  the  court,  informed  of  all  the  evidence  that 
tends  to  implicate  them,  and  instructed  as  to  their  right  to  be  present 
and  be  represented  by  counsel.     (See,  in  this  connection,  sec.  507.) 

512.  Rights  of  defendant  and  interested  party. — A  defendant  shall, 
at  his  own  request  but  not  otherwise,  be  a  competent  witness.     (20 
Stat.,  30.)     An  interested  party  may  be  required  to  testify,  but  in 
every  case  a  witness  may  decline  to  answer  any  question  which  tends 
to  incriminate  himself.     See  article  59  A.  G.  N.  as  to  the  rights  of 
parties  in  connection  with  the  examination  of  witnesses.     It  is  also 
the  right  of  a  defendant  or  interested  party,  if  he  so  desires,  to  make 
a  statement  to  the  court  in  regard  to  his  connection  with  the  subject 
matter  of  the  inquiry.    As  to  further  rights  of  such  party  see  sees. 
507,  508,  and  513. ' 

513.  Parties  may  introduce  evidence. — When  the  judge  advocate  has 
introduced  all  the  evidence  on  the  part  of  the  Government,  the  com- 
plainant, defendant,  and  interested  parties,  if  any,  may  introduce 
evidence  in  the  same  manner  as  the  accused  in  a  court-martial. 

CLERK — STENOGRAPHER — INTERPRETER — ORDERLY. 

514.  Employment  of  clerk,  stenographer,  or  interpreter. — With  the 
sanction  of  the  convening  authority,  a  court  of  inquiry  may  avail 

•itself  of  the  services  of  a  clerk,  stenographer,  or  interpreter,  but  such 
person  or  persons  shall  be  sworn,  and  shall  not  be  allowed  to  be 
present  in  closed  court. 

515.  Detail  of  orderly. — At  the  request  of  the  judge  advocate  of  the 
court,  the  commanding  officer  of  the  immediate  command  within 
which  the  court  is  to  sit  shall  direct  an  orderly  to  attend  upon  its 
meetings  and  execute  its  orders. 

PROCEDURE. 

516.  Rule  of  assembling. — Courts  of  inquiry  shall  assemble  at  the 
place  and,  as  nearly  as  practicable,  at  the  time  named  in  the  order 


262  INSTRUCTIONS  FOR  COURTS  AND  BOARDS. 

convening  them,  but  may  adjourn,  when  desirable,  to  such  place  as 
may  be  convenient  to  the  inquiry. 

517.  Need  not  meet  daily. — Courts  of  inquiry,  unlike  general  courts- 
martial,  need  not  meet  from  day  to  day,  but  have  power  to  adjourn 
for  such  period  as  may  be  necessary,  without  requesting  permission 
of  the  convening  authority. 

518.  Court  closed  for  consideration  of  preliminary  matters. — The  court 
on  first  assembling  is  usually  closed  until  the  order  constituting  it, 
and  the  instructions  contained  therein  (see  sec.  503),  are  read  and  the 
mode  of  procedure  has  been  decided  upon. 

519.  Open  or  closed  court. — Whether  the  investigation  shall  be  held 
in  opefi  court  or  closed  court  must  depend  upon  the  nature  of  the  mat- 
ter to  be  investigated,  and,  if  not  specified  by  the  convening  authority 
shall  be  decided  by  the  court. 

520.  Judge  advocate  does  not  withdraw  when  court  is  closed. — The 
judge  advocate  of  a  court  of  inquiry  does  not  withdraw  when  the 
court  is  cleared. 

521.  Parties  introduced. — After  the  mode  of  procedure  has  been 
decided  upon  by  the  court,  the  complainant,  defendants,  and  inter- 
ested parties,  if  any,  should  be  called  before  the  court  and  the  pre- 
cept should  be  read  by  the  judge  advocate. 

522.  When  there  is  no  defendant  or  interested  party. — When  the 
court  is  convened  to  inquire  into  certain  facts,  and  no  person  is 
placed  in  the  position  of  defendant  or  interested  party,  all  that  re- 
lates to  such  party  in  the  procedure  will  necessarily  be  omitted. 

523.  Challenge  of  member. — In  the  case  of  challenge  of  a  member 
the  procedure  is  the  same  as  laid  down  for  general  courts-martial. 
(See  sees.  277-282.) 

524.  Witnesses. — When  the  court  is  ready  to  proceed  with  the  in- 
vestigation, the  witnesses  shall  be  called  before  it  separately,  sworn 
by  the  president,  and  examined.     (See  A.  G.  N.  57.)     For  rules  gov- 
erning the  attendance  and  examination  of  witnesses  and  the  introduc- 
tion of  evidence  see  Chapter  VIII. 

525.  Parties  to  inquiry  may  introduce  evidence. — See  section  513. 

526.  Statements  and  arguments. — Arguments  may  be  made  or  state- 
ments submitted  by  the  parties  to  the  inquiry  in  accordance  with 
the  procedure  laid  down  .under  general  courts-martial.     (See  sees. 
311-317.) 

527.  Proceedings  and  instructions  to  be  examined. — After  all  the  evi- 
dence is  in  and  statements  and  arguments,  if  any,  have  been  received, 
the  court  should  be  cleared,  the  proceedings  read   over,   and   the 
instructions  contained  in  the  order  by  which  the  court  is  constituted 
should  be  carefully  examined  and  scrupulously  followed. 

; 


INSTRUCTIONS  FOR   COURTS  AND  BOARDS.  263 

OATHS. 

528.  To   members. — The  judge   advocate,   or  person  officiating  as 
such,  shall  administer  to  the  members  the  following  oath  or  affirma- 
tion : 

"  You,  A.  B.,  C.  D.,  E.  F.,  do  swear  (or  affirm)  well  and  truly  to 
examine  and  inquire,  according  to  the  evidence,  into  the  matter  now 
before  you,  without  partiality."  (A.  G.  N.  58.) 

529.  To  the  judge  advocate. — When  the  oath  has  been  administered 
to  the  members  of  a  court  of  inquiry,  the  president  of  the  court  shall 
administer  to  the  judge  advocate,  or  person  officiating  as  such,  the 
following  oath  or  affirmation : 

"  You,  A.  B.,  do  swear  (or  affirm)  truly  to  record  the  proceedings 
of  this  court  and  the  evidence  to  be  given  in  the  case  in  hearing." 
(A.  G.  N.  58.) 

530.  To  witnesses. — When  the  court  is  ready  to  proceed  with  the 
investigation,  the  witnesses  shall  be  called  before  it  separately,  and 
the  president  of  the  court  shall  administer  to  each  the  following 
oath  (or  affirmation)  : 

"  You,  A.  B.,  do  solemnly  swear  (or  affirm)  that  the  evidence  you 
shall  give  in  the  case  now  before  this  court  shall  be  the  truth,  the 
whole  truth,  and  nothing  but  the  truth,  and  that  you  will  state  every- 
thing within  your  knowledge  in  relation  to  the  matter  under  inquiry, 
so  help  you  God  (or  this  you  do  under  the  pains  and  penalties  of 
perjury)."  (A.  G.  N.  41.) 

531.  To  stenographer. — Administered  by  the  judge  advocate: 
"You,  A.  B.,  swear  (or  affirm)  faithfully  to  perform  the  duty  of 

stenographer  (clerk)  in  aiding  the  judge  advocate  to  take  and  record 
the  proceedings  of  the  court,  either  in  shorthand  or  in  ordinary 
manuscript." 

532.  To  interpreter. — Administered  by  the  judge  advocate : 

"  You,  A.  B.,  swear  faithfully  and  truly  to  interpret  or  translate 
in  all  cases  in  which  you  shall  be  required  so  to  do  between  the  United 
States  and  the  party  whose  conduct  is  the  subject  of  this  inquiry  or 
in  the  matter  under  inquiry." 

FINDINGS  AND  OPINION. 

533.  Findings  and  opinion,  if  required. — After  mature  deliberation  on 
the  testimony  recorded  during  the  inquiry,  the  court  shall  proceed  to 
report  the  facts,  and,  if  so  directed,  an  opinion  on  the  merits  of  the 
case  and  the  propriety  or  expediency,  or  otherwise,  of  further  action. 
(See  A.  G.  N.  57.)    If  the  court  should  be  of  the  opinion  that  further 
proceedings  should  be  had  in  the  matter,  it  should  state  what  pro- 
ceedings and  include  in  its  report  the  name  of  the  person  or  the 
persons   against   whom  such  proceedings  should  be  had.   and  the 


264  INSTRUCTIONS  FOE  COURTS  AND  BOARDS. 

specific  matter  upon  which  such  proceedings  should  be  had.  (See 
sec.  496  in  connection  with  the  findings  and  opinion  of  a  court  of 
inquiry  on  an  accident  involving  loss  of  life.) 

534.  Facts  defined. — When  a  court  is  required  to  report  facts,  it  is 
not  to  be  understood  that  the  bare  record  of  the  testimony  is  meant, 
but  also  the  result  and  conclusion  of  the  court  from  hearing  the 
evidence. 

535.  Opinion  of  court  not  to  be  disclosed. — It  is  held  to  be  a  breach 
of  discipline  on  the  part  of  any  member  of  a  court  of  inquiry  to 
disclose  or  publish  the  opinion  either  of  the  court  or  of  the  indi- 
vidual members  thereof  without  the  sanction  of  the  officer  to  whom 
the  proceedings  have  been  submitted. 

536.  Finding  and  opinion  may  be  typewritten. — The  finding  and 
opinion  of  a  court  of  inquiry  need  not  be  in  the  handwriting  of  the 
judge  advocate,  but  may  be  typewritten. 

537.  Minority  report. — If  a  member  does  not  concur  with  the  find- 
ings or  opinion  of  the  court,  he  shall  append  his  reasons  for  dissent 
and  subscribe  his  name  thereto.     The  report  of  the  court  shall  be 
based  upon  the  opinion  of  the  majority. 


EECOKD  OF  PROCEEDINGS. 


538.  Making  up  the  record. — See  instructions  laid  down  in  Chap- 
ter VII. 

539.  Precept  to  be  prefixed  to  original  copy  of  the  proceedings. — The 
original  of  the  order  constituting  a  court  of  inquiry  shall  be  prefixed 
to  the  original  copy  of  the  proceedings. 

540.  Authentication  of  proceedings. — The  proceedings  of  a  court  of 
inquiry  must  be  authenticated  by  the  signatures  of  the  president  and 
the  judge  advocate  of  the  court  (A.  G.  N.,  60)  ;  they  are  then  to  be 
submitted  to  the  convening  authority  for  his  consideration,  after 
which  the  court  may  adjourn  temporarily  to  await  his  further  in- 
structions. 

541.  Record — Number  of  copies — Disposition  after  convening  authority 
has  acted  thereon. — In  cases  in  which  no  material  is  involved  the 
original  copy  of  the  proceedings  of  a  court  of  inquiry  is  all  that  is  re- 
quired.   After  action  thereon  by  the  convening  authority  it  shall  be 
forwarded  direct  to  the  office  of  the  Judge  Advocate  General.    But  in 
cases  in  which  the  alteration,  repair,  or  loss  of  material  is  involved, 
there  shall  be  made,  in  addition  to  the  original,  a  partial  copy  cover- 
ing material.    The  original  shall  be  complete  in  every  particular  and 
shall  be  plainly  marked  "  Original "  at  the  top  of  the  title  page. 
The  copy  shall  include  all  evidence  in  regard  to  the  material  con- 
cerned and  so  much  of  findings  and  opinion  as  relates  to  material 
alone — such  parts  as  relate  to  disciplinary  action  being  omitted  from 


INSTRUCTIONS  FOR  COURTS  AND  BOARDS.  265 

this  copy.  Such  partial  copy  shall  be  plainly  marked  at  the  top 
of  the  title  page  "  Partial  copy  covering  material."  Both,  the 
original  and  the  partial  copy  are  forwarded  by  the  convening  author- 
ity to  the  office  of  the  Judge  Advocate  General,  from  which  office 
the  original  copy  dealing  with  disciplinary  features  is  referred  to 
the  Bureau  of  Navigation  and  the  partial  copy  covering  material 
is  referred  to  the  Chief  of  Naval  Operations  (Material).  In  c^ses 
in  which  copies  other  than  those  mentioned  herein  are  desired,  the 
convening  authority  shall  so  direct  in  the  letter  ordering  the  court. 
When  the  Secretary  of  the  Navy  is  the  convening  authority  the  copies 
required  herein  shall  be  sent  by  the  court  direct  to  the  office  of  the 
Judge  Advocate  General. 

542.  Parties  to  the  inquiry  not  entitled  to  copies  of  the  proceedings. — 
No  party  to  the  inquiry  can  demand  a  copy  of  the  proceedings.    The 
evidence,  findings,  and  opinion,  of  whatever  nature,  are  intended 

only  for  the  officer  ordering  the  court. 

-jjs^ddf  f  TdiftsrfW  .158 

REVISION. 

. 

543.  New  evidence  admissible  in  revision. — The  proceedings  of  a  court 
of  inquiry  may  be  revised  as  often  as  the  convening  authority  may 
deem  necessary.     New  evidence  may  be  received  and  recorded  on 
every  such  revision,  and  any  of  the  previous  witnesses  may  be  re- 
called and  reexamined  with  a  view  to  eliciting  further  information, 
provided,  in  either  case,  that  all  parties  to  the  inquiry  are  present, 
if  they  so  desire. 

REVIEWING  AUTHORITY. 

• 

544.  Courts  of  inquiry  records  are  reviewed  by  the   convening 
authority,  who  shall  take  such  further  action  upon  the  matters  dis- 
closed by  the  inquiry  as  he  may  deem  appropriate  or  shall  submit  the 
proceedings  to  the  Secretary  of  the  Navy  at  the  earliest  opportunity 
in  order  that  the  latter  may  take  such  action  thereon  as  may  be  ad- 
visable.   (See  sec.  541.) 

-r^ 

DISSOLUTION. 

545.  The  court  is  dissolved  by  order  of  the  convening  authority. 

.baiii/psi  ad  oJ  idolSo  ^nibn-Bfliinoo  aiw  10  tioqai 

INQUIRY  INTO  THE  Loss  OR  GROUNDING  OF  A  SHIP  OF  THE 

NAVY. 

546.  Whenever  a  court  is  appointed  to  inquire  into  the  cause  of  the 
loss  of  a  ship,  or  of  her  having  touched  the  ground,  the  following 
points,  as  far  as  pertinent,  are  invariably  to  be  included   in  the 
investigation : 


266  INSTRUCTIONS  FOR  COURTS  AND  BOARDS. 

547.  Documentary  evidence  to  be  required. — The  rough  log  book, 
commanding  officer's  night  order  book,  and  the  chart  by  which  the 
ship  was  navigated,  or  one  of  the  same,  must,  if  practicable,  be  pro- 
duced in  court. 

548.  Latest  determination  of  ship's  position. — The  court  shall   in- 
vestigate whether  the  proper  chart,  provided  by  the  Navy  Depart- 
ment, was  used ;  whether  the  position  of  the  ship  at  the  last  favorable 
opportunity  was  accurately  determined,  by  observation  or  otherwise ; 
and,  if  not,  when  it  was  last  accurately  ascertained. 

549.  Log  book  to  be  examined. — The  court  shall   also   determine 
whether  the  courses  steered  and  the  distances  run  on  the  day  before 

-the  ship  grounded  were  correctly  inserted  in  the  log  book ;  also,  when 
the  error  for  local  deviation  was  last  obtained. 

550.  When  land  was  made. — If  land  was  made,  and  the  distance 
estimated  before  the  ship  struck,  it  is  to  be  ascertained  what  steps 
were  taken  during  the  time  it  was  in  sight  to  correct  the  ship's  run. 

551.  Whether  instructions  have  been  obeyed. — The  court  shall  rigidly 
investigate  the  manner  in  which  the  instructions  contained  in  the 
regulations,  to  officers  commanding  ships  on  approaching  land,  were 
observed. 

552.  Examination  of  the  ship's  position.— Some  competent  officer  not 
attached  to  the  ship,  the  loss  or  grounding  of  which  may  be  the  sub- 
ject of  inquiry,  shall  be  directed  to  work  up  the  reckoning  of  that 
ship  from  the  data  obtained  from  her  navigating  officer,  to  enable  the 
court  to  fix  the  true  position  of  the  ship  at  the  time  of  her  taking  the 
ground.     The  officer  appointed  to  perform  this  duty  shall  submit 
to  the  court  in  writing,  attested  by  his  signature,  the  result  of  his 
work,  to  the  accuracy  of  which  he  shall  be  sworn.     The  position 
of  the  ship  so  determined  shall  be  laid  off  on  the  chart  by  which 
she  was  navigated,  as  also  her  position  when  ashore,  as  determined 
by  cross  bearings  taken  from  the  log  book.    The  rate  and  direction 
of  the  tide  stream  and  the  time  of  tide  shall  be  stated,  if  possible. 

553.  Documents  to  accompany  the  record. — Any  of  the  documents 
referred  to  in  sections  547  and  552  which  were  used  in  the  inquiry, 
with  an  attested  extract  from  the  log,  commencing  at  least  48  hours 
before  the  ship  touched  the  ground,  if  pertinent,  are  to  accompany 
the  record  of  the  court. 

554.  Official  report  of  the  commanding  officer  to  be  required. — When- 
ever inquiry  is  made  into  the  loss  of  a  ship,  the  court  shall  call  for 
the  official  report  of  the  commanding  officer  of  such  ship,  containing 
the  narrative  of  the  disaster,  and  this  report  shall  be  read  in  court  in 
the  presence  of  the  commanding  officer  and  of  such  of  the  surviving 
officers  and  crew  as  can  be  assembled,  and  shall  be  appended  to  the 
record. 


INSTRUCTIONS  FOR   COURTS  AND  BOARDS.  267 

555.  Questions  to  be  asked  by  the  court. — After  these  survivors  have 
been  sworn  as  witnesses,  the  following  questions  shall  be  put  to  them 
by  the  court:  (1)  (To  the  commanding  officer)  "Is  the  narrative 
just  read  to  the  court  a  true  statement  of  the  loss  of  the  United 

States  ship ?  "    (2)    (To  the  commanding  officer)  "  Have  you 

any  complaint  to  make  against  any  of  the  surviving  officers  and  crew 
of  the  said  ship  on  that  occasion?  "  (3)  (To  the  surviving  officers 
and  crew)  "Have  you  any  objections  to  make  in  regard  to  the  nar- 
rative just  read  to  the  court,  or  anything  to  lay  to  the  charge  of 
any  officer  or  man  with  regard  to  the  loss  of  the  United  States 
ship-  _?» 

26450°— 17 18 


XIV. 

GENERAL  INSTRUCTIONS  GOVERNING  THE 
PROCEDURE  OF  BOARDS. 


269 


• 

fioiTouaiOT 

MHAOS  'W  MlKK'IQOH'l 


btsod  lo  ^loqaH  — isbiobaJBL  .895 

GENEKAL  INSTRUCTIONS  GOVEENING  THE  PRO- 
CEDURE OF  ALL  BOARDS. 

556.  Precedence  of  members. — Officers  on  boards  shall  take  their  seats 
in  the  same  order  of  rank  or  seniority  as  on  courts-martial.     (See 
sec.  236.) 

557.  Duties  of  senior  member. — The  senior  member  or  president  of  a 
board  shall  preserve  order,  decide  upon  matters  relating  to  the  rou- 
tine of  business,  such  as  recess,  and  may  adjourn  the  board  from  day 
to  day,  at  and  to  such  hours  as  in  his  judgment  will  be  most  con- 
venient and  proper  for  the  transaction  of  the  business  before  it ;  but 
should  an  objection  be  made  by  any  other  member  of  the  board  to  a 
recess  or  adjournment  announced  by  the  senior  member,  a  vote  shall 
be  taken  with  regard  to  it,  and  the  decision  of  the  majority  shall 
govern. 

558.  Quorum  necessary. — No  board  shall  transact  any  business  other 
than  an  adjournment  unless  a  majority  of  the  members  be  present, 
except  when  the  officer  ordering  the  board  so  authorizes. 

559.  Unauthorized  absence  forbidden. — No  member  of  a  board  shall 
fail  in  his  attendance  at  the^  appointed  times,  unless  prevented  by 
illness  or  by  some  insuperable  difficulty,  ordered  away  by  competent 
authority,  or  excused  by  the  officer  ordering  the  board,  except  that  a 
short  temporary  absence  may  be  allowed  by  the  senior  member  of  the 
board ;  nor  shall  a  member  leave  the  vicinity  of  the  place  at  which  a 
board  is  assembled,  unless  authorized  to  do  so  by  the  officer  who 
convened  it,  or  by  his  superior. 

560.  Absence  reported. — In  case  of  absence  of  a  member  the  senior 
officer  present  of  the  board  shall  inform  the  officer  ordering  the  board 
of  the  fact,  and  also  of  the  reasons  for  the  absence,  if  known  to  him, 
in  order  that  the  vacancy  may  be  filled,  if  such  officer  deems  necessary. 

561.  Members  voting  after  absence. — A  member  absent  during  the 
investigation  of  any  matter  or  case  shall  not  vote  upon  a  decision 
with  regard  to  it,  unless,  if  necessary  to  arrive  at  a  conclusion,  a  rein- 
vestigation  take  place  in  the  presence  of  that  member  and  of  the 
interested  parties. 

562.  Interpreter. — A  competent  officer  of  any  branch  of  the  service 
will  be  added,  if  necessary,  to  any  board  by  which  candidates  are  to 

271 


272  INSTRUCTIONS  FOR  COURTS  AND  BOARDS. 

be  examined  in  a  foreign  language,  or  before  which  an  investigation 
may  take  place  wherein  the  services  of  an  interpreter  may  be  required. 

563.  Recorder — Report  of  board. — A  competent  person  may  be  ap- 
pointed by  the  officer  who  orders  the  board  to  record  its  transactions 
and,  under  its  direction,  to  draw  up  the  report  of  the  board,  which 
shall  be  based  upon  the  opinion  of  the  majority.    This  report  shall 
be  signed  by  all  the  members  who  concur.    (See  sec.  565.) 

564.  Junior  member  to  act  as  recorder  when  none  is  appointed. — In 
case  a  recorder  has  not  been  designated  in  the  convening  order,  the 
junior  member  shall  act  as  recorder;  but,  in  that  event,  the  report, 
based  upon  the  opinion  of  the  majority,  shall  be  drawn  up  by  the 
senior  member  and  shall  be  signed  as  provided  for  above. 

565.  Nonconcurring  members. — Those  members  who  do  not  concur 
with  the  report  of  the  board  shall  append  their  reasons  for  dissent 
and  subscribe  their  names  thereto. 

566.  Findings  and  opinion  not  to  be  disclosed. — Neither  the  findings 
nor  opinion  of  a  board  or  investigation  shall  be  disclosed  without 
proper  authority.    (See  sec.  535.) 

567.  Findings  and  opinion  may  be  typewritten. — The  findings  and 
opinion  of  a  board  or  investigation  may  be  typewritten. 

NOTE. — The  instructions  contained  in  the  following  chapters  govern  the  pro- 
cedure of  all  boards  in  the  Navy,  except  those  that  are  administrative  rather 
than  judicial  in  character,  such  as  boards  of  survey,  boards  of  medical  survey, 
boards  of  selection  for  promotion,  and  certain  boards  organized  for  the  pur- 
pose of  inquiry  and  report  in  regard  to  administrative  features.  Types  of  the 
special  boards  last  alluded  to  are  such  boards  as  the  tire-control  board  and  the 
personnel  board  convened  at  times  at  the  Navy  Department;  the  procedure  of 
such  boards  will  be  governed  largely  by  the  character  of  the  matter  to  be 
inquired  into  and  such  special  instruction  as  they  may  receive  in  each  case. 

• 
' 

— .fcataoqet  aonsatfA  .Odd 

"aoxisacte  isttJ?  -guttov  rwdmaM  .185 

• 
. 

JSTd'KriSjfll      .AC 


XV. 
INVESTIGATION. 


273 


w: 


• 

. 

rroob  flaqo  10  JteaoID — bsJoiKbttoo  woH-  it;  :*!  .£TS 

INVESTIGATION. 

568.  By  whom  ordered  and  how  constituted. — A  senior  officer  present, 
who  is  not  empowered  to  order  courts  of  inquiry,  or  one  who  is  so 
empowered  and  considers  that  the  interests  of  the  service  will  be  bet- 
ter served  by  an  investigation  as  set  forth  herein,  may  order  one 
officer  to  conduct  an  investigation  for  the  purpose  of  inquiring  into 
any  matter  in  regard  to  which  the  Navy  Department  should  be 
mformed. 

569.  Authority  for  such  investigation. — The  authority  for  such  in- 
vestigation is  based  upon  section  183,  Revised  Statutes,  as  amended 
by  the  act  of  February  13,  1911   (36  Stat.,  898),  which  reads  as 
follows : 

Any  officer  or  clerk  of  any  of  the  departments  lawfully  detailed  to  investigate 
frauds  on,  or  attempts  to  defraud,  the  Government,  or  any  irregularity  or  mis- 
conduct of  any  officer  or  agent  of  the  United  States,  and  any  officer  of  the  Army, 
Navy,  Marine  Corps,  or  Revenue-Cutter  Service,  detailed  to  conduct  an  investi- 
gation, and  the  recorder,  and  if  there  be  none,  the  presiding  officer  of  any 
military,  naval,  or  Revenue-Cutter  Service  board  appointed  for  such  purpose, 
shall  have  authority  to  administer  an  oath  to  any  witness  attending  to  testify 
or  depose  in  the  course  of  such  investigations. 

570.  Precept. — The  precept,  or  letter  to  the  investigating  officer, 
shall  refer  to  the  above  statutory  authority  and  shall  supply  such 
officer  with  the  instructions  and  information  necessary  to  the  con- 
duct of  the  investigation,  for  which  latter  purpose  reference  may 
be  made  to  attached  papers.    It  shall  also  name  the  parties  to  the  in- 
vestigation. 

571.  Power  to  administer  oaths. — The  above  act  (see  sec.  569)  ex- 
pressly gives  an  investigating  officer,  detailed  in  accordance  with 
its  terms,  authority  to  administer  oaths. 

572.  Oath  to  stenographer. — The  following  oath  shall  be  adminis- 
tered by  the  investigating  officer  to  the  stenographer  (clerk)  if  any 
be  detailed: 

"  You,  A.  B.,  swear  (or  affirm)  faithfully  to  perform  the  duty 
of  stenographer  (clerk)  in  taking  and  recording  the  proceedings  of 
the  investigation,  either  in  shorthand  or  in  ordinary  manuscript." 

573.  Oath  to  witness. — The  following  oath  shall  be  administered 
by  the  investigating  authority  to  witnesses: 

"  You,  A.  B.,  do  solemnly  swear  (or  affirm)  that  the  testimony  you 

shall  give  in  the  matter  of now  in  hearing  shall  be  the  truth, 

275 


276  INSTRUCTIONS  FOR  COURTS  AND  BOARDS. 

the  whole  truth,  and  nothing  but  the  truth,  so  help  you  God  (or,  this 
you  do  under  the  pains  and  penalties  of  perjury)." 

574.  Investigation — How  conducted — Closed  or  open  doors. — Whether 
the  investigation  shall  be  conducted  with  closed  or  open  doors  must 
depend  on  the  nature  of  the  matter  to  be  examined,  and,  if  not 
specified  by  the  officer  ordering  the  investigation,  shall  be  decided 
by  the  investigating  officer. 

575.  Rights  of  parties  to  the  investigation. — The  parties  to  the  in- 
vestigation have  the  same  rights  as  the  parties  to  a  court  of  inquiry. 
(See  sees.  506-513.) 

576.  Summoning  witnesses. — Sections  11  and  12  of  the  act  of  Feb- 
ruary 16,  1909,  quoted  under  article  42,  A.  G.  N.,  do  not  give  an 
investigating  officer  the  power  accorded  to  general  courts-martial 
and  courts  of  inquiry  to  compel  the  attendance  of  civilian  witnesses. 
The  attendance  of  a  civilian  witness  before  an  investigation  is,  there- 
fore, not  compellable,  and  the  provisions  of  section  422  in  regard 
thereto  apply.     (For  general  instructions  governing  the  summoning 
of  witnesses  see  sees.  122-132. ) 

577.  Procedure. — In  general  the  procedure  laid  down  for  courts  of 

.,,      !«•••,  I  /C-l  V-t/»         K^AT     \ 

inquiry  will  be  followed.     (See  sees.  516-527.) 

578.  Findings. — After  mature  deliberation  on  the  evidence  intro- 
duced during  the  investigation,  the  investigating  officer  shall  report 
the  facts  found  to  be  established.    He  shall  not,  unless  so  directed  by 
the  officer  who  ordered  the  investigation,  give  an  opinion  on  the 
merits  of  the  case.    Ordinarily  such  opinion  should  not  be  requested 
in  view  of  the  fact  that  but  one  officer  constitutes  such  investigation. 

579.  Record  of  proceedings. — See  sections  538-542  under  courts  of 
inquiry,  which  in  general  apply  to  the  record  of  an  investigation. 
The  provisions  of  section  541  in  regard  to  the  disposition  of  the 
records  of  courts  of  inquiry  apply  to  the  records  of  investigations, 
except  that  in  the  case  of  an  investigation  conducted  by  an  officer 
or  by  a  civilian  official  or  clerk,  in  regard  to  a  subject  not  pertain- 
ing to  the  naval  service,  the  report  shall  be  in  duplicate  and  shall 
be  forwarded  direct  to  the  Secretary  of  the  Navy   (Office  of  the 
Solicitor). 

580.  Revision. — See  section  543  under  courts  of  inquiry,  which  ap- 
plies to  an  investigation. 

581.  Reviewing  authority. — See   section   544  under   courts   of   in- 
quiry, which  applies  to  an  investigation.     (See  sec.  579  as  to  disposi- 
tion of  record.) 

• 

- 


XVI. 
BOARDS  OF  INVESTIGATION. 


277 


BOARDS  OF  INVESTIGATION. 

582.  By  whom  ordered. — A  senior  officer  present,  who  is  not  em- 
powered to  order  courts  of  inquiry,  may  order  a  board  of  investi- 
gation.   Also  an  officer  who  is  empowered  to  order  a  court  of  inquiry 
may,  under  the  circumstances  hereinafter  mentioned,  order  a  board 
of  investigation. 

583.  When  ordered. — A  board  of  investigation  should  be  ordered 
to  investigate  any  casualty,  occurrence,  or  transaction  in  regard  to 
which  the  department  should  be  informed  and  under  the  circum- 
stances set   forth  in  section  497,  when  the  senior  officer   present 
is  not  empowered  to  order  courts  of  inquiry,  or  when  the  senior 
officer  present,  if  so  empowered,  deems  it  advisable  to  order  such 
board  in  lieu  of  a  court  of  inquiry. 

In  case  of  collision  with  merchant  vessels. — In  the  event  of  a  colli- 
sion between  a  ship  of  the  Navy  and  a  merchant  vessel  so  serious  or 
under  such  circumstances  as  not  to  admit  of  immediate  repair  with 
the  resources  at  hand,  and  therefore  likely  to  involve  damages,  a 
board  of  investigation  shall  be  ordered  by  the  senior  officer  present 
to  ascertain  all  the  attendant  circumstances,  injuries  received  by  the 
merchant  vessel,  probable  amount  of  damages,  and  which  of  the 
ships  is  responsible  for  the  accident ;  and  the  master  of  the  merchant 
vessel  concerned  shall  be  notified  of  the  time  and  place  of  meeting 
of  the  board  and  informed  that  the  officers  and  men  of  his  vessel  will 
be  given  a  hearing  by  the  board,  if  such  hearing  is  desired.  For 
instructions  concerning  the  preparation  and  forwarding  of  the  re- 
port of  such  board  see  section  593.  (For  additional  steps  to  be 
taken  in  such  cases  see  Naval  Instructions,  1913,  1-941.) 

584.  Constitution. — A  board  of  investigation  shall  consist  of  three 
officers  as  members.    A  separate  recorder  may  be  detailed  at  the  dis- 
cretion of  the  officer  ordering  the  board.     (See  sees.  563  and  564.) 

585.  Precept. — The   precept   or  convening   order,   in   addition   to 
naming  the  membership  of  the  board  and  setting  the  time  and  place 
of  meeting,  shall  state  clearly  and  concisely  the  matter  that  is  to  be 
investigated  and  what  the  report  of  the  board  thereon  shall  include. 
See  section  503,  which  in  general  applies  to  the  precept  for  a  board 
of  investigation. 

279 


280  INSTRUCTIONS  FOE  COURTS  AND  BOARDS. 

586.  Powers  of  a  board  of  investigation. — Boards  of  investigation, 
although  they  shall  collect  material  information  from  apparent  or 
known  facts,  or  from  written  evidence  which  they  may  possess,  and 
shall  record  the  declarations  of  persons  examined  before  them,  will 
not  take  testimony  under  oath  except  in  important  cases  in  which  the 
order  convening  the  board  expressly  states  that  such  board  is  author- 
ized to  administer  oaths  to  witnesses  in  accordance  with  section  183 
of  the  Revised  Statutes,  as  amended  by  the  act  of  February  13,  1911 
(36  Stat.,  898),  quoted  in  section  569. 

587.  Oaths. — When  a  board  of  investigation  is  expressly  empowered 
to  administer  oaths,  the  oaths  given  in  sections  572  and  573  shall  be 
administered  by  the  recorder. 

588.  Investigation — How  conducted — Closed  or  open  doors. — See  sec- 
tion 574,  which  applies  to  a  board  of  investigation. 

589.  Rights  of  parties  to  the  investigation. — The  parties  to  an  in- 
vestigation conducted  by  a  board  of  investigation  have  the  same 
rights  as  the  parties  to  a  court  of  inquiry.    (See  sees.  506-513.) 

590.  Summoning  witnesses. — See  section  576,  which  applies  to  boards 
of  investigation. 

591.  Procedure. — In  general  the  procedure  laid  down  for  courts  of 
inquiry  will  be  followed.     (See  sees.  516-527.)     Boards  of  investiga- 
tion, however,  do  not  ordinarily,  except  as  noted  in  section  586, 
take  testimony  under  oath,  and  the  statements  of  unsworn  witnesses 
before  such  board  shall  be  recorded  as  declarations. 

592.  Findings  and  opinion. — The  board,  after  mature  deliberation, 
shall  make  a  report  of  its  findings,  stating  fully,  clearly,  and  as  con- 
cisely as  possible  all  tne  facts  of  the  case.    When  required  by  the 
order  convening  it,  the  board  will  give  its  opinion  as  to  the  merits  of 
the  case.     Such  opinion  should  be  recorded  immediately  after  the 
facts  which  have  been  established.    (See  sees.  563-567.) 

593.  Record  of  proceedings. — See  sections  538-542  under  courts  of 
inquiry,  which  in  general  apply  to  the  record  of  a  board  of  inves- 
tigation.'   The  provisions  of  section  541  in  regard  to  the  disposition 
of  the  records  of  courts  of  inquiry  in  general  apply  to  the  records  of 
boards  of  investigation,  but  when  a  board  is  ordered  to  investigate  a 
collision  with  a  merchant  vessel  (see  sec.  583)  the  report  of  such 
board  should  be  prepared  in  quadruplicate — one  copy  to  be  for- 
warded without  delay  to  the  Navy  Department,  one  retained  by  the 
senior  officer  present,  one  furnished  to  the  commanding  officer  of 
the  naval  vessel  concerned,  and  the  remaining  copy  given  to  the 
master  of  the  merchant  vessel,  provided  that  the  officers  and  crew 
thereof  who  were  witnesses  to  the  collision  shall  have  testified  be- 
fore the  board.    When  repairs  have  been  effected  on  the  spot,  a 


INSTRUCTIONS  FOR  COURTS  AND  BOARDS.  281 

certificate  of  the  fact  shall  be  taken  from  the  master  and  forwarded, 
through  the  commander  in  chief,  to  the  Secretary  of  the  Navy. 

594.  Revision. — See  section   543   under  courts  of  inquiry,   which 
applies  to  a  board  of  investigation. 

595.  Reviewing  authority. — See  section  544  under  courts  of  inquiry, 
which  applies  to  a  board  of  investigation.     (See  sec.  593  as  to  the 
disposition  of  record.) 


XVII. 

.  BOARDS  OF  INQUEST 

AND 

LINE  OF  DUTY"  AND  "MISCONDUCT 
CONSTRUED. 


26450°— 17 19  283 


.II 

. 

• 

raooaiM"  a»       rua  10  mi 


BOARDS  OF  INQUEST. 

596.  By  whom  and  when  ordered. — In  all  cases  of  death  occurring 
in  the  Navy  as  the  result  of  an  accident,  or  attended  with  unnatural 
or  suspicious  circumstances,  the  senior  officer  present  shall  order  a 
board  of  inquest  to  assemble  and  investigate  the  matter.     (See  sec. 

496.  y 

597.  Constitution. — Such  boards  shall  be  composed  of  not  less  than 
three  commissioned  officers,  of  whom  one  at  least  shall  be  of  the 
Medical  Corps.     A  separate  recorder  may  be  detailed  at  the  dis- 
cretion of  the  officer  ordering  the  board.     (See  sees.  563  and  561.) 

598.  Precept. — The  precept  or  convening  order  names  the  member- 
ship of  the  board  and  states  the  matter  to  be  investigated. 

599.  Oaths  not  authorized. — Neither  the  members  of  the  board  nor 
any  person  that  may  be  examined  shall  be  sworn. 

600.  First  duty  of  the  board. — The  board  shall,  after  convening, 
first  proceed  to  the  spot  where  the  body  has  been  found,  or  where  it 
may  be,  identify  it,  examine  into  its  condition,  and  note  its  surround- 
ings, for  the  purpose  of  discovering  if  possible  some  evidence  that 
may  tend  to  throw  light  on  the  matter.    If  the  body  of  the  deceased 
shows  wounds  or  bruises  such  as  to  indicate  or  create  suspicion  that 
he  came  to  his  death  by  violent  means,  it  shall  be  the  duty  of  the 
board  to  ascertain,  with  as  much  exactness  as  possible,  the  precise 
nature  of  the  wounds  or  blows  and  of  the  instrument  by  which  they 
were  inflicted.    The  medical  member  of  the  board  shall  be  required, 
after  a  careful  examination  of  the  body,  to  give  his  opinion  as  to  the 
cause  of  death,  and  such  opinion  shall  be  entered  separately  in  the 
record. 

601.  Assembling  of  board  to  receive  evidence. — The  board  shall  then 
return  to  the  place  of  convening  and  receive  and  record  all  the  evi- 
dence procurable  relative  to  the  manner  in  which  the  deceased  came 
to  his  death.    If  there  is  reason  to  suspect  a  homicide,  the  board  shall 
endeavor  to  ascertain  the  person  or  persons,  if  any,  directly  respon- 
sible for  the  homicide,  if  there  were  any  aiders  or  abettors,  and  such 
other  particulars  as  may  afford  the  means  of  drawing  up,  with  the 
precision  required  by  the  law,  the  necessary  charges  and  specifica- 
tions against  the  person  or  persons  accused  of  the  homicide. 

602.  Summoning    witnesses. — See    section    576,    which    applies    to 
boards  of  inquest.     Every  witness  who  may  be  able  to  throw  any 

285 


286  INSTRUCTIONS  FOR  COURTS  AND  BOARDS. 

additional  light  on  the  manner  or  cause  of  death  should  be  called 
before  the  board. 

603.  Declarations  of  witnesses. — Boards  of  inquest,  not  being  em- 
powered to  administer  oaths,  can  not  take  sworn  testimony.     The 
statements  of  witnesses  before  such  boards  are  known  as  declarations. 

604.  Procedure. — The  proceedings  of  a  board  of  inquest  are  in  no 
sense  a  trial  but  are  a  preliminary  inquiry  into  the  facts  involved 
for  the  information  of  the  convening  authority j  and  it  is  necessary 
that  this  officer,  in  reviewing  the  proceedings,  should  have  before 
him  all  the  facts  and  circumstances  that  influenced  the  opinion  of 
the  board.     To  this  end  the  declarations  of  witnesses  shall  be  re- 
corded in  detail  and  all  the  facts  should  be  set  forth  in  the  record 
and  nothing  left  to  inference.    Material  witnesses  as  to  facts  should 
be  examined  first  in  order  that  their  declarations  may  be  received 
while  the  facts  are  still  fresh  in  their  minds  and  before  they  are 
afforded  opportunity  to  absent  themselves.    In  case  of  homicide,  the 
person  suspected  of  the  crime  may  be  called  as  a  witness  and  ex- 
amined, after  he  has  been  duly  warned  by  the  senior  member  that 
anything  he  may  say  before  the  board  may  afterwards  be  used 
against  him.     After  the  material  witnesses  have  been  heard,  the 
opinion  of  the  medical  member  of  the  board  as  to  the  cause  of  death 
shall  be  received  (see  sec.  600).    In  addition  thereto,  in  order  that 
the  board  may  the  better  arrive  at  its  opinion,  medical  officers  other 
than  those  on  the  board  may  be  called,  when  desirable,  and  asked  for 
an  opinion  as  to  the  cause  of  death  or  other  attendant  circumstances. 

605.  Opinion. — In  every   case  the  board  shall,   after  careful  in- 
vestigation, state  in  the  record  their  identification  of  the  body,  and 
whether  and  to  w7hat  extent,  in  their  opinion,  the  death  of  the  indi- 
vidual was  due  to  disease  contracted  or  casualties  or  injuries  received 
while  in  the  line  of  his  duty.    In  all  cases  where  the  board  expresses 
the  opinion  that  death  was  not  in  the  line  of  duty,  the  board  will, 
in  addition  to  such  opinion,  state  whether  or  not,  in  its  opinion, 
the  deceased  met  his  death  as  the  result  of  his  own  misconduct. 

606.  Record  of  proceedings. — See  sections  538  and  539  under  courts 
of  inquiry,  which  apply  to  the  record  of  a  board  of  inquest.     The 
record  shall  be  transmitted  by  the  board  to  the  convening  authority, 
who,  under  the  circumstances  set  forth  in  section  496,  shall  order 'a 
court  of  inquiry;  or,  if  not  so  empowered,  shall  immediately  for- 
ward the  record  to  his  next  superior  in  command  who  is  so  em- 
powered.    When  a  court  of  inquiry  is  ordered  the  record  of  the 
board  of  inquest  may  be  transmitted  to  the  judge  advocate  in  order 
to  assist  him  in  conducting  the  inquiry  (see  sec.  503).     When  not 
so  transmitted  it  shall  be  forwarded  directly  to  the  office  of  the  Judge 
Advocate  General.    When  transmitted  to  the  judge  advocate  of  a 


INSTRUCTIONS   FOR   COURTS   AND  BOARDS.  287 

court  of  inquiry,  it  shall  be  forwarded  together  with  the  record  of 
the  latter. 

607.  Revision. — See  section  543,  which  applies  to  a  board  of  inquest. 

608.  Reviewing  authority. — The  record  of  a  board  of  inquest  is 
reviewed  by  the  convening  authority,  who  takes  such  action  thereon 
as  is  appropriate  to  the  case.     (See  sec.  606  as  to  the  disposition  of 
the  record.) 

"LINE  OF  DUTY-"  AND  " MISCONDUCT''  CONSTRUED. 

"LINE  OF  DUTY." 

609.  What  constitutes  "line  of  duty." — It  does  not  necessarily  fol- 
low that  in  all  cases  where  the  death  of  a  person  in  the  service  was 
not  the  result  of  his  own  misconduct  it  must  be  held  to  have  occurred 
in  the  line  of  duty.     Thus,  in  a  case  where  it  appeared  that  the  de- 
ceased, while  on  leave  of  absence,  had  gone  to  a  hotel,  engaged  a 
room,  and  was  later  found  asphyxiated  as  the  result  of  a  gas  jet  in  the 
room  having  been  left  turned  on  and  unlighted  when  he  retired,  there 
was  no  ground  for  finding  that  the  death  occurred  in  line  of  duty. 
Granting,  in  such  cases,  that  death  was  accidental  and  was  not  caused 
by  any  fault  of  the  deceased,  it  is  nevertheless  patent  that  his  death 
was  not  due  to  an  act  of  duty.     Also  in  a  case  in  which  the  deceased, 
while  on  leave  of  absence  and  not  performing  any  act  even  remotely 
connected  with  the  service,  was  run  over  by  a  train,  it  likewise  could 
not  properly  be  said  that  his  death  was  due  to  an  act  of  duty. 
Similarly,  when  the  deceased,  while  on  liberty,  was  murdered  by  a 
shipmate  in  consequence  of  some  difficulty  between  the  two  men  of  a 
wholly  personal  nature,  a  holding  that  death  was  due  to  an  act  of 
duty  could  not  be  supported.     Many  other  cases  of  like  character 
might  be  cited  to  show  that  there  is  a  distinction  between  holding 
that  death  was  not  due  to  "  misconduct "  and  that  it  occurred  in  "  line 
of  duty." 

As  remarked  by  the  Attorney  General  in  an  opinion  rendered  May 
17,  1855  (7  Op.  Atty.  Gen.,  150),  the  law  "does  not  say  'any  disease 
[or  injury]  not  the  consequence  of  misconduct,'  and  if  that  had  been 
the  category  contemplated  by  the  legislator  he  would  have  pro- 
pounded it  in  simple  and  apt  phraseology."  It  follows,  therefore, 
that  the  words  "  line  of  duty  "  can  not  properly  be  held  to  embrace 
every  cause  of  death  not  due  to  the  misconduct  of  the  deceased,  but 
are  used  by  Congress  in  a  more  limited  sense  in  its  various  enact- 
ments relating  to  the  disability  or  death  of  persons  in  the  Army  or 
Navy.  This  conclusion  is  further  supported  by  the  fact  that  the  law 


288  INSTRUCTIONS  FOR  COURTS  AND  BOARDS. 

providing  for  the  allowance  of  six  months'  pay  to  the  widow  or 
designated  beneficiary  of  deceased  officers  or  enlisted  men  of  the  Navy 
originally  applied  by  its  terms  to  cases  where  the  death  was  due  to 
"wounds  or  disease  contracted  in  the  line  of  duty";  but  by  act  of 
August  22,  1912,  Congress  substituted  the  words  "  not  the  result  of 
his  own  misconduct "  for  the  words  "  contracted  in  the  line  of  duty," 
this  amendment  being  made  for  the  express  purpose  of  giving  the 
law  a  broader  application. 

610.  Distinction  important  between  acts  of  duty  and  those  of  personal 
nature. — An  important  fact  which  should  not  be  overlooked  by  offi- 
cers serving  on  boards  of  inquest  or  courts  of  inquiry  in  cases  of  this 
character  is  that,  while  "  every  person  who  enters  the  military  serv- 
ice of  the  country — officer,  soldier,  sailor,  or  marine — takes  upon 
himself  certain  moral  and  legal  engagements  of  duty,  which  con- 
stitute his  official  or  professional  obligations,"  nevertheless,  "  though 
a  soldier  or  sailor,  he  is  not  the  less  a  man  and  a  citizen,  with  private 
rights  to  exercise  and  duties  to  perform;  and  while  attending  to  these 
things  he  is  not  in  the  line  of  his  public  duty."     (7  Op.  Atty.  Gen., 
150.)   In  the  same  opinion  the  Attorney  General  further  stated  on  this 
point :  "  It  is  impossible  to  say  that  the  phrase  casualties  or  injuries 
received  '  in  the  line  of  duty  '  comprehends  all  the  possible  misadven- 
tures of  mere  private  life,  which  may  happen  to  an  officer  in  his  per- 
sonal affairs,  and  wholly  disconnected  from  his  public  duty,  though 
he  be  not  on  furlough."     In  other  words,  as  was  held  by  the  United 
States  Circuit  Court  of  Appeals  (Ehodes  v.  U.  S.,  79  Fed.,  740),  in 
order  to  support  a  finding  of  line  of  duty  "  the  service  must  have 
been  the  cause  of  the  disease  \or  injury}  and  not  merely  coincident 
with  it  in  time" 

611.  Question  not  one  of  status. — The  status  of  an  officer  or  enlisted 
man  at  the  time  of  his  death  or  at  the  time  of  contracting  the  disease, 
or  receiving  the  injury  occasioning  same,  is  not  controlling  upon  the 
question  of  whether  his  death  occurred  in  the  line  of  duty.     As 
pointed  out  by  the  Attorney  General,  a  person  in  the  Navy,  "  whilst 
off  duty,  or  on  furlough,  or  under  censure    *     *     *     may  do  or  suf- 
fer things  which  are  in  the  line  of  duty,"  the  same  as,  on  the  other 
hand,  "  while  on  active  duty,  he  may  do  or  suffer  things  not  in  the 
line  of  his  duty,"  and  "  any  rule  based  on  the  assumption  of  its  being 
impossible  for  an  officer  or  soldier  on  furlough,  on  leave  of  absence, 
in  arrest,  under  sentence,  to  perform  acts,  suffer  casualties,  receive 
wounds,  or  incur  causes  of  disease  in  the  line  of  his  duty  is  not  a 
truth,  and,  like  all  things  not  true,  can  not  be  conformable  to  justice 
or  wisdom."    And,  again :  "  A  soldier  or  sailor,  while  '  under  arrest,' 
or  '  in  confinement,'  is  not  discharged  from  the  obligation  of  duty, 
and  is  occasionally  called  upon  to  perform  duty  in  which  he  may  dis- 


INSTRUCTIONS   FOR   COURTS  AND  BOARDS.  289 

tinguish  himself  and  die  honorably,  and  leave,  it  seems  to  me,  a  right 
of  pension  to  his  widow  or  children;  as,  for  example,  in  the  con- 
tingency of  a  post  or  a  camp  attacked  by  the  enemy,  or  a  ship  in 
peril  at  sea.  So,  still  more,  of  an  officer  on  furlough.  So  it  may  be 
in  the  case  of  a  soldier  temporarily  '  absent  on  leave,'  nay,  even  of  one 
compromised  in  some  grave  military  offense." 

It  has  accordingly  been  held  by  the  department  in  the  case  of  a 
man  who  was  stabbed  while  on  liberty  that  his  injuries  were  incurred 
in  line  of  duty,  it  appearing  that  he  was  "stabbed  by  a  drunken 
cabman  while  endeavoring  to  get  an  injured  shipmate  back  to  his 
vessel,  an  act  in  the  line  of  his  duty  performed  while  on  liberty." 

Ordinarily,  however,  the  injury  or  death  of  a  person  in  the  Navy 
while  on  leave  or  liberty  is  not  the  result  of  an  act  of  duty.  In  such 
cases  he  is  usually  in  the  exercise  of  his  private  rights  or  the  per- 
formance of  private  duties,  and  his  injury  or  death,  while  coinci- 
dent with  the  service  in  point  of  time,  can  not  be  held  to  have  been 
caused  by  the  service.  "All  the  consequences  of  the  absence  of  an 
officer  or  a  soldier  from  his  post  of  duty  on  his  own  motion  for  his 
own  purposes  of  business  or  pleasure  must  be  regarded  as  outside 
the  line  of  duty.  While  traveling  from  and  returning  to  the  post 
of  duty  on  an  ordinary  furlough,  given  for  such  purposes,  he  is  at 
his  own  risk  as  to  causes  of  disability  to  which  he  may  be  subjected." 
(4  P.  D.,  54;  7  id.,  102;  16  id.,  21;  House  Doc.  No.  5,  54th  Cong.,  2d 
sess.,  p.  74.)  Surrounding  circumstances,  however,  may  work  a 
modification  of  this  rule,  as  in  the  example  cited  above.  So  also 
when  a  person  returning  from  leave  or  liberty,  and  prior  to  expira- 
tion thereof,  enters  a  boat  provided  by  the  Government  for  lifs 
tansportation  back  to  his  vessel,  he  is  once  more  within  the  control 
of  the  naval  authorities,  and  if  killed  or  injured  without  the  inter- 
vention of  any  act  the  result  of  his  own  misconduct,  a  finding  of  line 
of  duty  would  be  proper.  But  if  he  is  returning  to  his  vessel  in  a 
private  conveyance  of  his  own  selection,  he  would  not  be  in  a  line 
of  duty  status,  unless  actually  engaged  in  the  performance  of  an  act 
of  duty. 

If  a  man  is  given  permission  to  go  on  shore  for  the  express  purpose 
of  engaging  in  athletic  sports  or  exercises  encouraged  by  the  Navy 
Regulations,  or  permission  to  go  swimming  or  boating,  and  is 
injured  or  killed  without  negligence  or  other  act  the  result  of  his 
own  misconduct,  the  finding  should  be  line  of  duty.  Where,  how- 
ever, a  man  is  granted  liberty  for  his  own  purposes,  and  while  on 
liberty  goes  in  swimming  and  is  drowned,  the  mere  fact  that  swim- 
ming is  encouraged  by  the  regulations  is  not  sufficient  ground  for 
holding  that  his  death  occurred  in  line  of  duty.  In  such  a  case  the 
general  rule  applies,  and  it  must  be  held  that  his  death  resulted 


290  INSTRUCTIONS  FOR  COURTS  AND  BOARDS. 

from  the  exercise  of  his  private  rights  and  was  not  caused  by  "  an 
act  of  duty  performed." 

While  a  prisoner  may  be  injured  or  killed  in  line  of  duty,  as 
shown  by  the  examples  given  by  the  Attorney  General  in  his  opinion 
(7  Op.,  150),  such  cases  must  be  exceptional  ones  rather  than  the 
rule.  Thus,  where  an  enlisted  man  is  performing  hard  labor  under 
sentence  of  general  court-martial,  and  an  injury  received  by  him 
is  wholly  due  to  execution  of  such  sentence,  it  can  not  be  held  line 
of  duty.  (15  P.  D.,  54;  5  id.,  151.)  If  an  enlisted  man  is  arrested  or 
imprisoned,  but  on  trial  is  adjudged  not  guilty,  a  disease  incurred 
during  his  arrest  and  imprisonment  is  within  the  line  of  duty. 
(4  P.  D.,  103.)  If  the  man  died  while  awaiting  trial,  a  disease  so 
contracted  is  held  to  have  been  incurred  in  line  of  duty.  (14  P.  D., 
213.)  But  in  a  case  where  a  private  in  the  Marine  Corps  was 
burned  to  death  while  in  confinement  by  the  civil  authorities,  before 
trial,  and  the  evidence  showed  that  his  imprisonment  was  the  result 
of  misconduct  (drunkenness)  while  on  liberty,  his  death  was  held 
not  to  have  occurred  in  the  line  of  duty. 

So,  also,  many  cases  arise  where  the  injury  causing  death  was 
received  while  the  deceased  was  in  a  duty  status,  so  far  as  being 
present  on  board  a  vessel  or  at  a  station  to  which  he  was  attached 
is  concerned,  and  yet  the  circumstances  are  such  that  it  can  not  be 
held  to  have  been  caused  by  an  act  of  duty.  For  example,  in  a 
case  where  the  death  of  a  man  resulted  from  injuries  received  by 
him  while  "entering  a  bunker  and  striking  a  match  there,"  which 
acts  "  were  both  against  orders,"  the  department  held  that  his  death 
was  the  result  of  "  misconduct  or  violation  of  duty  "  on  his  part,  and 
was  not,  therefore,  the  result  of  an  injury  received  in  the  line  of 
duty.  Again,  it  has  uniformly  been  held  that  an  enlisted  man  is 
not  in  line  of  duty  while  engaged  in  scuffling  or  squabbling  with 
his  companions,  or  voluntarily  engaged  in  what  is  commonly  known 
as  "horseplay,"  although  at  the  time  on  board  the  ship  to  which 
he  was  attached.  (5  P.  D.,  47;  6  id.,  22;  14  id.,  81;  id.,  506; 
Rhodes  v.  U.  S.,  79  Fed.,  740.)  And  "it  has  repeatedly  been  held 
that  where  the  death  of  the  soldier  *  *  *  was  caused  by  an 
overdose  of  a  narcotic  or  other  poison,  which  had  been  either  pre- 
scribed originally  by  a  physician  in  the  U.  S.  service  or  taken  upon 
the  soldier's  own  responsibility  through  mistake  and  with  no  suicidal 
intent,  such  death  cause  can  not  be  accepted  as  a  competent  basis  for 
claim."  (1  P.  D.,  Ill,  case  of  Travers,  hospital  steward.) 

Death  or  injury  while  on  duty,  resulting  from  disability  existing 
prior  to  enlistment,  does  not  come  within  the  "  line  of  duty  "  category. 
(16  P.  D.,  172.)  However,  when  a  disability  which  originated  prior 
to  enlistment,  but  was  apparently  cured  prior  to  and  at  the  date  of 


INSTRUCTIONS  FOR  COURTS  AND  BOARDS.  291 

enlistment,  is  revived  and  aggravated  as  the  immediate  result  of  an 
accident  or  of  an  incident  in  the  line  of  duty,  the  injurious  conse- 
quences of  such  aggravation  may  amount  to  line  of  duty.  (3  P.  D., 
41.)  In  such  a  case  it  is  necessary  to  establish  some  cause  or  injury 
resulting  from  or  incurred  in  service  in  line  of  duty  sufficient  to  pro- 
duce a  recurrence  of  said  disability — some  cause  without  which  the 
recurrence  would  not  have  happened — and  not  merely  natural  aggra- 
vation of  an  already  existing  disability.  (3  P.  D.,  187.) 

Predisposition  to  disease  is  no  bar  to  pension  if  the  disease  did  not 
develop  until  after  claimant's  admission  to  the  service.  (3  P.  D.,  228 ; 
16  id.,  413.) 

612.  No  general  rule;  each,  case  must  be  determined  upon  its  own 
facts. — As  was  stated  by  the  Attorney  General  in  an  opinion  ren- 
dered July  22,  1881,  with  respect  to  the  question  of  what  constitutes 
disability  incurred  in  line  of  duty,  "it  is  impossible  to  lay  down  a 
general  rule  which  will  be  applicable  to  cases  of  this  kind,  or  to  the 
different  aspects  which  the  *  *  *  claim  might  present,  as  the 
facts  shall  be  developed  by  the  evidence."  Thus,  not  even  in  the  case 
of  death  by  suicide  can  it  be  stated  as  an  unalterable  rule  that  it  was 
not  due  to  an  act  of  duty.  Suicide  is,  however,  so  unlikely  a  result 
of  an  act  of  duty  that  the  presumption  in  such  cases  must  be  against 
line  of  duty  in  the  absence  of  evidence  affirmatively  showing  that  it 
was  caused  by  the  service.  This  is  in  accordance  with  the  Attorney 
General's  opinion  of  May  IT,  1855,  in  which  it  is  stated  that  "  if  the 
suicide  is  alleged  to  have  been  produced  by  insanity,  and  thus  in- 
sanity be  put  forward  as  the  causa  camans,  then  it  must  be  shown  that 
the  insanity  was  the  result  of,  or  incidental  to,  acts  of  duty."  So, 
also,  in  the  case  of  Ehodes  v.  United  States,  it  will  be  noted  that  the 
court  refers  to  "  a  wound  or  injury  inflicted  upon  himself  by  a 
soldier  "  as  one  of  the  cases  where  the  injury  does  not  result  from  the 
service,  although  coincident  with  it  in  time.  Nevertheless,  in  a 
proper  case,  death  by  suicide  may  be  held  to  have  occurred  in  the 
line  of  duty,  but  the  facts  supporting  "such  a  conclusion  must  be 
definitely  ascertained  and  established.  (1  P.  D.,  Ill ;  1  id.,  108 ;  5  id., 
32;  IT  id.,  50.) 

While,  as  already  stated,  no  general  rule  can  be  formulated  ap- 
plicable to  all  cases,  it  will  be  seen  from  the  foregoing  that  the  ques- 
tion to  be  determined  in  each  case  is  not  what  was  the  status  of  the 
deceased  when  the  disease  was  contracted  or  the  injury  received,  nor 
whether  such  disease  or  injury  was  the  result  of  his  own  mis- 
conduct, but  "  was  the  cause  of  disability  or  death  a  cause  within  the 
line  of  duty  or  outside  of  it?  Was  that  cause  appertaining  to,  de- 
pendent upon,  or  otherwise  necessarily  and  essentially  connected  with 
duty  within  the  line  or  was  it  unappurtenant,  independent,  and  not 


292  INSTRUCTIONS  FOR  COURTS  AND  BOARDS. 

of  necessary  and  essential  connection  "  ?  In  other  words,  to  constitute 
"  line  of  duty "  an  act  of  duty  performed  must  have  relation  of 
causation,  mediate  or  immediate,  to  the  wound,  the  casualty,  the  in- 
jury, or  the  disease  producing  disability  or  death." 


613.  In  a  case  where  it  appeared  that  the  death  of  the  deceased  was 
due  to  his  carelessness  or  negligence  in  stumbling  over  the  stringpiece 
at  the  head  of  a  dock  in  the  navy  yard  while  returning  to  his  ship  from 
liberty  and  falling  upon  a  float  eighteen  or  twenty  feet  below,  it  was 
held  by  the  department  that  the  death  of  the  deceased  was  not  due  to  his 
own  misconduct.  In  accordance  with  precedent  it  must  be  held  in  such 
cases  that,  as  the  deceased  was  absent  from  his  station  and  duty  on 
liberty  at  the  time  of  his  death  and  was  not  actually  engaged  in  the 
performance  of  duty,  his  death  did  not  occur  in  the  line  of  duty, 
and,  under  the  circumstances  above  related,  was  not  due  to  his  own 
misconduct.  Thus,  negligence  is  not  necessarily  misconduct.  "  The 
term  '  misconduct '  implies  a  wrongful  intention  and  not  a  mere  error 
of  judgment."  (Smith  v.  Cutler  (N.  Y.),  10  Wend.,  590,  25  Am. 
Dec.,  580;  United  States  v.  Warner,  28  Fed.  Cas.,  404.)  "In  usual 
parlance  misconduct  means  a  transgression  of  some  established  and 
definite  rule  of  action,  where  no  discretion  is  left,  except  what  neces- 
sity may  demand;  and  carelessness,  negligence,  and  unskillfulness 
are  transgressions  of  some  established  but  indefinite  rule  of  action, 
where  some  discretion  is  necessarily  left  to  the  actor.  Misconduct  is 
a  violation  of  definite  law ;  carelessness,  an  abuse  of  discretion  under 
an  indefinite  law.  Misconduct  is  a  forbidden  act;  carelessness,  a 
forbidden  quality  of  an  act,  and  is  necessarily  indefinite."  (Citizens 
Ins.  Co.  v.  Marsh,  41  Pa.  (5  Wright),  386,  394;  5  Wds.  &  Ph.,  4531.) 


XVIII. 

NAVAL  EXAMINING  BOARDS. 

(R.  S.  1493  to  1510.) 


293 


i/iY 


f>f  ftftp 


NAVAL  EXAMINING  BOAEDS. 


Page. 

Where  convened 295 

Convening  authority 295 

Constitution 295 

Precept 296 

Candidate 296 

Candidates  for  appointment 297 

Procedure 297 

Oaths %. 298 

Witnesses 299 

Finding  and  recommendation 299 

The-record 300 

Revision 301 

Final  action"...'; ' .!?J 

Supervisory  boards 302 


WHEN  CONVENED. 

614.  When  convened. — At  stated  or  convenient  periods,  boards  will 
be  convened  for  the  examination  of  candidates  for  appointment  or 
promotion,  and  such  candidates  shall  be  duly  informed  of  the  time 
and  place  of  meeting. 

CONVENING  AUTHORITY. 

615.  The  act  of  March  4, 1917,  provides: 

'  That  hereafter  the  Secretary  of  the  Navy  may  authorize  the 
senior  officer  present,  or  other  commanding  officer,  on  a  foreign 
station  to  order  boards  of  medical  examiners,  examining  boards, 
and  retiring  boards  for  the  examination  of  such  candidates  for  ap- 
pointment, promotion,  and-  retirement  in  the  Navy  and  Marine 
Corps  as  may  be  serving  in  such  officer's  command  and  may  be 
directed  to  appear  before  any  such  board." 


CONSTITUTION. 

616.  Composition  of  board. — Boards  for  the  mental,  moral,  and  pro- 
fessional examination  of  officers  of  the  Navy  for  promotion  "shall 
consist  of  not  less  than  three  officers,  senior  in  rank  to  the  officer  to  be 
examined."  (Sec.  1498,  R.  S.)  Such  boards  shall,  when  practicable, 
be  selected  from  the  same  corps  as  that  to  which  the  candidate  belongs. 

295 


296  INSTRUCTIONS  FOB  COURTS  AND  BOARDS. 

617.  Board  for  examination  of  candidates  to  fill  vacancies  in  lower 
grades  of  staff  corps. — The  mental,  moral,  and  professional  examina- 
tion of  candidates  to  fill  vacancies  in  the   lower   grades   of  the 
medical,  pay,  and  other  staff  corps  shall  be  conducted  by  boards 
constituted  similarly  to  the  above  (sec.  616). 

Board  for  examination  of  candidates  for  appointment  as  assistant 
paymaster. — Section  1379,  Revised  Statutes,  requires  that  no  candi- 
date shall  be  appointed  as  assistant  paymaster  "  until  his  physical, 
mental,  and  moral  qualifications  have  been  examined  and  approved 
by  a  board  of  pay  officers  appointed  by  the  Secretary  of  the  Navy, 
and  according  to  such  regulations  as  he  may  prescribe."  Although 
by  statute  the  determination  of  the  physical,  as  well  as  the  mental 
and  moral,  qualifications  of  the  candidate  is  left  to  the  board  of 
pay  officers,  the  physical  examination  of  such  candidate  will  be  con- 
ducted by  a  board  of  medical  examiners  who  shall  report  the  result 
thereof  to  the  examining  board  of  pay  officers,  certifying  as  to4he 
physical  qualifications  of  the  candidate,  and  such  report  shall  form 
par.t  of  the  record  of  the  latter  board. 

618.  Recorder. — See  sections  563  and  564. 

PKECEPT. 

619.  The  precept  shall  set  the  time  and  place  of  meeting  and  name 
the  membership  of  the  board.    The  necessary  instructions  relative  to 
the  conduct  of  the  examinations  need  not  be  contained  in  the  precept 
but  may  accompany  same  or  be  otherwise  issued.     (See  note,  p.  443, 
in  regard  to  the  issuance  of  a  precept  in  blank.) 

CANDIDATE. 

620.  The  responsibility  of  the  officer  under  examination. — The  onus  of 
establishing  professional  fitness  shall  be  held  to  rest  entirely  upon 
the  officer  under  examination.     The  mental  and   moral  fitness  of 
the  candidate  shall  be  assumed  unless  a  doubt  shall  be  raised  on 
either  head,  in  the  mind  of  any  member  of  the  board,  from  the 
answers  contained  in  any  of  the  interrogatories  or  reports  on  fitness, 
from  the  general  reputation  of  the  candidate,  or  from  other  sources 
of  evidence  of  record. 

621.  No  officer  to  be  rejected  without  examination. — "  No  officer  shall 
be  rejected  until  after  such  public  examination  of  himself  and  of  the 
records  of  the  Navy  Department  in  his  case  unless  he  fails,  after  due 
notification,  to  appear  before  the  said  board."     (R.  S.,  1503.) 

622.  Right  of  candidate  to  be  present — Orders  to  candidate. — "Any 
officer  whose  case  is  to  be  acted  upon  by  an  examining  board  shall 
have  the  right  to  be  present,  if  he  so  desires,  and  to  submit  a  state- 
ment of  his  case  on  oath."     (R.  S.,  1500.)     The  candidate  shall  pre- 


INSTRUCTIONS  FOR   COURTS  AND  BOARDS.  297 

sent  his  orders  as  his  authority  for  appearing  before  the  board.  The 
orders  to  a  candidate  shall  state  the  grade  or  rank,  or,  if  to  more 
than  one,  the  grades  or  ranks,  for  promotion  to  which  the  candidate 
is  to  be  examined.  See  form,  p.  443. 

623.  Candidate  as  a  witness. — By  the  above  statute  (sec.  622)  the 
candidate  is  authorized,  if  he  so  desires,  to  submit  a  statement  to  the 
board.    Inasmuch,  however,  as  mere  ex  parte  statements  of  persons 
not  subjected  to  cross-examination  are  of  little  weight  as  evidence,  the 
proper  procedure  is  to  permit  the  candidate,  if  he  so  desires,  to  take 
the  stand  as  a  witness.    Under  such  circumstances  he  is,  of  course, 
subject  to  cross-examination.     Likewise,  the  board  may  call  the  can- 
didate as  a  witness.     (See  C.  M.  O.,  29,  1915,  6.) 

624.  Candidate  not  to  be  discharged  before  completion  of  case. — Care 
shall  be  taken  not  to  discharge  a  candidate  until  his  case  is  fully 
completed.    This  applies  particularly  to  cases  where  there  are  un- 
favorable reports  or  other  evidence. 

625.  In  case  the  candidate  is  not  ordered  to  appear  before  the  board. — 
In  cases  where,  owing  to  the  exigencies  of  the  service,  it  is  not 
desirable  to  order  a  candidate  to  appear  before  an  examining  board, 
such  candidate  may  be  examined  on  his  record  only.     But,  if  the 
board  deem  it  necessary,  in  order  to  establish  the  fitness  of  the  can- 
didate, that  he  appear  personally  before  it,  the  department  shall  be 
so  informed,  with  the  reasons  therefor. 

CANDIDATE  FOR  APPOINTMENT. 

626.  General  requirements. — No  person  shall  be  appointed  to  any 
office  in  the  Navy  unless  he  is  a  citizen  of  the  United  States  (sec. 
1428,  E.  S.)?  nor  until  he  shall  have  passed  a  physical,  mental,  and 
professional  examination.     (But  see  sec.  617  as  to  qualifications  of 
candidates  for  assistant  paymaster.) 

627.  Candidates  failing  to  present  themselves  for  examination. — Any 
person  who  fails  to  present  himself  for  examination  after  having 
obtained  permission  shall  be  considered  as  having  forfeited  his  right 
to  appear. 

628.  Penalty  for  false  certificate. — Any  candidate  who  gives  a  false 
certificate  of  age,  time  of  service,  or  character,  or  makes  a  false  state- 
ment to  a  board  of  examiners,  shall  be  regarded  as  disqualified. 

PKOCEDUKE. 

629.  Physical  examination  precedes  professional. — The  physical  ex- 
amination of  a  candidate  for  appointment  or  promotion  shall  pre- 
cede the  mental  and  professional,  and  if  he  be  found  physically 
unfit,  he  shall  not  be  examined  otherwise;  and  before  proceeding 
with  the  examination,  the  president  of  the  naval  examining  board 
shall  ascertain  that  the  candidate  has  been  found  qualified  by  a 


298  INSTRUCTIONS   FOE  COURTS  AND  BOARDS. 

board  of  medical  examiners.  When  the  contrary  is  found  to  be 
the  case  all  papers  in  the  case  will  be  returned  to  the  office  of  the 
Judge  Advocate  General. 

630.  Professional  examination. — The  professional  examination  will 
be  conducted  in  accordance  with  the  instructions  which  may  be  con- 
tained in  or  accompany  the  precept  convening  the  board  or  which 
may  be  otherwise  issued.     (See  sec.  619.) 

631.  Procedure. — The  board  of  examiners  shall  be  duly  organized 
and  sworn  in  each  case,  subject  to  challenge,  in  the  same  manner  as 
provided  for  naval  courts-martial.    It  shall  have  power  to  take  testi- 
mony and  to  examine  all  matter  on  the  files  and  records  of  the  de- 
partment in  relation  to  any  officer  whose  case  is  to  be  considered 
by  it.    (E.  S.,1499.) 

632.  Consideration  of  matter  relative  to  candidate. — There  shall  be 
submitted  to  the  board  for  its  consideration  all  matters  on  the  files 
and  records  of  the  department  which  relate  in  any  way  to  the  mental, 
moral,  or  professional  fitness  of  the  officer  whose  case  is  being  in- 
quired into,  with  the  exception  of  such  matter  as  falls  within  the 
provisions  of  the  following  statute : 

"  That  hereafter  in  the  examination  of  officers  in  the  Navy  for  pro- 
motion no  fact  which  occurred  prior  to  the  last  examination  of  the 
candidate  whereby  he  was  promoted,  which  has  been  enquired  into 
and  decided  upon,  shall  be  again  enquired  into,  but  such  previous 
examination,  if  approved,  shall  be  conclusive,  unless  such  fact  con- 
tinuing shows  the  unfitness  of  the  officer  to  perform  all  his  duties 
at  sea."  (20  Stat.,  165.) 

633.  All  matters  to  be  investigated. — Entries  in  the  medical  history 
of  the  candidate  or  other  accompanying  papers,  not  within  the  pro- 
hibition of  the  statute  quoted  in  the  preceding  section,  indicating 
moral  or  other  unfitness,  shall  be  investigated  by  a  naval  examining 
board. 

634.  Questions  of  law. — Any  question  of  law  arising  before  the 
board,  and  any  communications  relating  to  its  proceedings,  shall  be 
submitted  to  the  Judge  Advocate  General. 

635.  Incidents  out  of  ordinary  routine. — Any  incidents  out  of  the 
ordinary  routine  of  the  examination  shall  be  appropriately  and  in 
proper  chronological  order  entered  in  the  record. 

OATHS. 

636.  Oath  administered  by  president  to  recorder. — "  You,  A —  B — ,  do 
solemnly  swear  (or  affirm)  that  you  will  keep  a  true  record  of  the 

proceedings  of  this  board  in  the  case  of ,  now  before  the 

board  and  about  to  be  examined." 

637.  Oath  administered  by  recorder  to  members. — "You,  A —  B — , 
C —  D — ,  E —  F — ,  and  each  of  you  solemnly  swear  (or  affirm)  that 


INSTRUCTIONS  FOE  COURTS  AND  BOARDS.  299 

you  will  honestly  and  impartially  examine  and  report  upon  the  case 
of ,'  now  before  the  board  and  about  to  be  examined." 

638.  Oath,  administered  by  president  to  witnesses. — "  You,  A —  B — , 
do  solemnly  swear  (or  affirm)  that  you  will  make  true  answer  to  such 

questions  as  may  be  put  to  you  in  the  case  of ,  now 

under  examination  by  the  board." 

WITNESSES. 

639.  Witness  before  the  board. — Any  officer  may  be  called  before  the 
board  to  give  evidence  if  deemed  necessary.    Witnesses,  before  testi- 
fying, shall  be  sworn. 

640.  Summoning  witnesses. — All  witnesses  before  naval  examining 
boards  shall  be  summoned  via  the  convening  authority.     But,  as  a 
general  rule,  it  may  be  assumed  that,  had  the  candidate's  professional 
examination  and  record  been  satisfactory  to  the  board,  it  would  have 
been  unnecessary  for  him  to  summon  witnesses  in  his  behalf.    There- 
fore, except  under  unusual  circumstances,  the  convening  authority 
can  do  no  more  than  grant  permission  to  an  officer  under  his  com- 
mand, who  is  summoned  as  a  witness,  to  be  absent  from  his  station 
and  duty;  and  all  the  expenses  of  the  aforesaid  witness  must  be 
borne  by  the  officer  who  desires  to  have  him  summoned. 

641.  In  case  the  witness  is  to  be  examined  upon  written  interroga- 
tories.— Such  questions  as  the  candidate  may  reasonably  request  to 
have  asked  by  means  of  written  interrogatories  regarding  any  par- 
ticular matter  or  incident  touching  his  fitness  for  promotion  may  be 
addressed  by  the  Bureau  of  Navigation  to  any  officer  having  knowl- 
edge of  the  facts,  or  by  the  convening  authprity  if  such  officer  be 
under  his  command.    Whenever  such  a  request  is  deemed  unreason- 
able by  the  board,  it  should  be  at  once  referred  to  the  convening 
authority  for  decision. 

642.  Officers  junior  in  rank  to  candidate  shall  not  be  questioned  as  to 
matters  of  opinion. — No  inquiry  as  to  matter  of  opinion  shall  be  put 
to  any  officer  who  is  junior  in  rank  to  the  candidate  for  promotion. 

THE  FINDING  AND  RECOMMENDATION  OF  THE  BOARD. 

643.  Rule  governing  board's  recommendation. — It  shall  be  held  oblig- 
atory upon  any  member  of  the  board  to  decline  to  recommend  the 
promotion  of  any  officer  until  he  is  satisfied  of  the  officer's  entire 
mental,  moral,  and  professional  fitness  for  promotion.    (See  sec.  620.) 
The  board,  while  careful  not  to  do  injustice  to  .any  officer  regarding 
whom  there  is  any  doubt,  shall  take  equal  care  to  safeguard  the 
honor  and  dignity  of  the  service,  recommending  no  officer  for  pro- 
motion as  to  whose  fitness  a  doubt  exists.     (See  C.  M.  O.  13,  1916, 

26450°— 17 20 


300  INSTRUCTIONS   FOR   COURTS  AND  BOARDS. 

6-7.)     In  case  of  dissent  the  majority  report  becomes  the  report  of 
the  board.    (See  sec.  650.) 

644.  Form  of  recommendation  prescribed  by  law. — A  naval  examining 
board,  when  it  decides  to  so  recommend,  "  shall  report  their  recom- 
mendation of  any  officer  for  promotion   in  the  following   form: 

4  We  hereby  certify  that has  the  mental,  moral,  and 

professional  qualifications  to  perform  efficiently  all  the  duties,  both 
at  sea  or  on  shore,  of  the  grade  to  which  he  is  to  be  promoted 

[,  to  wit  ,]   and  recommend  him  for  promotion.'"     (R.  S., 

1504.)     In  the  case  of  a  candidate  for  appointment  the  board  must 
certify  that  he  has  the  required  qualifications  for  admission  and 
recommend  him  for  appointment. 

645.  Board  must  state  the  cause  of  a  candidate's  failure. — Whenever 
the  board  fails  to  recommend  a  candidate  for  admission  or  promo- 
tion, it  must  state  on  the  record  whether  such  failure  is  owing  to 
his  -mental,  moral,  or  professional  unfitness,  or,  in  the  case  of  candi- 
dates for  the  Pay  Corps,  his  mental,  moral,  or  physical  unfitness. 
(See  sec.  617.)     When  the  unfitness  of  a  candidate  for  promotion 
is  "by  reason  of  drunkenness,  or  from  other  cause  arising  from  his 
own  misconduct,"  the  record  must  so  state  and  must  also  show  that 
the  candidate  was  "  informed  of  and  heard  upon  the  charges  against 
him."    (See  sec.  656.) 

THE  RECORD. 

646.  Date  of  the  proceedings. — The  date  of  the  record  is  that  of  the 
day  when  the  board  reaches  its  finding  and  makes  its  recommenda- 
tion.   The  date  of  me'eting  and  subsequent  intermediate  dates  are 
appropriately  referred  to  in  the  proceedings.     The  date  on  cover 
sheet  is  in  accordance  with  section  85. 

647.  Entry  in  record  of  statement  of  candidate  and  testimony  of  wit- 
nesses.— The  statement  of  the  officer  undergoing  examination,  if  any 
such  statement  be  made,  all  questions  propounded  to  him  and  his 
answers  thereto,  with  the  testimony  of  all  witnesses,  shall  be  entered 
in  the  record  of  proceedings. 

648.  In  the  case  of  a  line  officer  above  the  grade  of  lieutenant, — The 
examining  board  will  ascertain  and  state  in  the  record  whether  or  not 
the  candidate  has  taken  any  course  of  instruction  at  the  Naval  War 
College,  and,  if  so,  for  what  period  of  time  and  to  what  extent  he 
took  advantage  of  his  opportunities. 

649.  Record  must  show  specifically  that  unfavorable  evidence  was  con- 
sidered,— When  there  is  evidence  of  an  unfavorable  nature,  the  record 
must  show  affirmatively  that  the  board  fully  considered  this  unfavor- 
able evidence.    It  is  not  sufficient  to  set  forth  in  general  terms  that 
unfavorable  matter   was  considered,  but   the  specific  unfavorable 


INSTRUCTIONS  FOR  COURTS  AND  BOARDS.  301 

report  or  other  matter  must  be  set  forth  in  full,  together  with  the 
reasons  that  guided  the  board  in  its  recommendation. 

650.  Authentication  and  transmission  of  the  record. — The  record  of 
proceedings  shall  be  signed  by  all  the  members  and  the  recorder  and 
be  transmitted,  together  with  all  reports  of  qualifications  and  other 
documentary  evidence  which  has  been  before  the  board,  to  the  con- 
vening authority,  who,  after  acting  upon  same,  shall  transmit  it  to 
the  Judge  Advocate  General.     If  the  board  has  been  convened  by 
the  department  the  record  shall  be  forwarded  direct  to  the  Judge 
Advocate  General.    In  case  of  dissent  the  record  must  show  those 
of  the  members  who  concurred  in,  and  those  who  dissented  from, 
the  opinion  of  the  board,  with  the  reasons  for  dissent. 

651.  Copies  of  orders,  etc.,  certified. — A  copy  of  the  precept  and  of 
every  order  or  notice  addressed  to  the  board  or  to  the  candidate, 
certified  by  the  recorder,  must  be  prefixed  to  the  record  of  proceed- 
ings in  the  case,  and  each  exhibit,  of  whatever  nature,  must  be 
separately  designated  as  prescribed  in  section  84. 

652.  Making  up  the  record. — Reports  of  fitness,  answers  to  interroga- 
tories, commendatory  letters,  letters  relating  to  indebtedness,  etc., 
shall  be  appended  to  the  record,  all  papers  of  each  class  together 
and  arranged  in  chronological  order.     For  general  instructions  in 
regard  to  making  up  the  record  see  Chapter  VII. 

REVISION. 

653.  The  record  of  an  examining  board  may  be  returned  to  the 
board  for  revision  in  any  particular  which  the  convening  authority 
may  deem  necessary. 

FINAL  ACTION. 

654.  "Any  matter  on  the  files  and  records  of  the  Navy  Department, 
touching  each  case,  which  may,  in  the  opinion  of  the  board,  be  neces- 
sary to  assist  them  in  making  up  their  judgment,  shall,  together  with 
the  whole  record  and  finding,  be  presented  to  the  President  for  his 
approval  or  disapproval  of  the  finding."     (E.  S.,  1502.) 

But  the  act  of  May  22,  1917,  provides : 

"  That  the  President  be,  and  he  is  hereby,  authorized  to  direct  the 
Secretary  of  the  Navy  to  take  such  action  on  the  records  of  pro- 
ceedings of  naval  examining  boards  and  boards  of  naval  surgeons  for 
the  promotion  of  officers  of  the  Navy  as  is  now  required  by  law  to  be 
taken  by  the  President." 

655.  In  case  of  professional  failure. — "Any  officer  of  the  Navy  on 
the  active  list  below  the  rank  of  commander  who,  upon  examination 
for  promotion,  is  found  not  professionally  qualified,  shall  be  sus- 
pended from  promotion  for  a  period  of  six  months  from  the  date  of 
approval  of  said  examination,  and  shall  suffer  a  loss  of  numbers 


302  INSTRUCTIONS  FOE  COURTS  AND  BOARDS. 

equal  to  the  average  six  months'  rate  of  promotion  to  the  grade  for 
which  said  officer  is  undergoing  examination  for  the  five  fiscal  years 
next  preceding  the  date  of  approval  of  said  examination,  and  upon 
the  termination  of  said  suspension  from  promotion  he  shall  be  re- 
examined,  and  in  the  case  of  his  failure  upon  such  reexamination  he 
shall  be  dropped  from  the  service  with  not  more  than  one  year's 
pay."  (E.  S.,  1505,  as  amended  by  act  of  Mar.  11,  1912,  37  Stat., 
73.) 

656.  When  found  disqualified  by  reason  of  drunkenness  or  misconduct. — 
"  Whenever  on  an  inquiry  had  pursuant  to  law,  concerning  the  fit- 
ness of  an  officer  of  the  Navy  for  promotion,  it  shall  appear  that^ 
such  officer  is  unfit  to  perform  at  sea  the  duties  of  the  place  to  which 
it  is  proposed  to  promote  him,  by  reason  of  drunkenness,  or  from 
any  cause  arising  from  his  own  misconduct,  and  having  been  in- 
formed of  and  heard  upon  the  charges  against  him,  he  shall  not  be 
placed  on  the  retired  list  of  the  Navy,  and  if  the  finding  of  the  board 
be  approved  by  the  President,  he  shall  be  discharged  with  not  more 
than  one  year's  pay."    (22  Stat.,  286.)     (See  sec.  645.) 

SUPERVISORY  BOARDS. 

657.  When  ordered. — In  certain  cases,  where  deemed  desirable,  a 
supervisory  board  may  be  appointed  to  supervise  the  written  pro- 
fessional examination,  preliminary  to  promotion,  of  such  officers  as 
may  be  ordered  to  report  for  such  examination  and  as  may  waive 
their  rights  to  appear  in  person  before  a  statutory  board,  provided 
such  officer  has  been  notified  of  the  time  and  place  of  meeting  of 
the  latter  board. 

658.  Constitution. — Such  board  shall  consist  of  three  officers.    Offi- 
cers junior  to  the  officer  to  be  examined  may  be  designated  as  mem- 
bers of  a  supervisory  board  when  the  exigencies  of  the  service  so 
require.     A  separate  recorder  may  or  may  not  be  detailed.     (See  sees. 
563  and  564.) 

659.  How  convened. — The  Secretary  of  the  Navy,  or  other  duly 
authorized  convening  authority  of  naval  examining  boards,  may  di- 
rect any  commanding  officer  under  his  command  to  appoint  such 
supervisory  board. 

660.  Oaths — Not  administered. — Neither  the  members  nor  the  re- 
corder of  a  supervisory  board  are  sworn,  but  the  waiver  must  be 
sworn  to  before  the  president  of  such  board. 

661.  Procedure. — A  supervisory  board  need  not  keep  a  record  of  its 
daily  proceedings;  but  such  proceedings  shall  be  conducted  in  ac- 
cordance with  the  procedure  laid  down  for  naval  examining  boards 
in  so  far  as  applicable. 


INSTRUCTIONS  FOR  COURTS  AND  BOARDS.  303 

The  board  will  ask  each  candidate  if  he  has  any  objection  to  the 
statutory  naval  examining  board,  which  will  be  ordered  to  conduct 
his  examination  and  to  make  final  recommendation  upon  his  case. 
If  the  candidate  has  no  such  objection,  he  will  be  permitted  to  waive 
his  right  to  appear  in  person  before  the  statutory  board,  as  conferred 
by  section  1500  of  the  Revised  Statutes  (see  sec.  622),  and,  after  the 
candidate  has  signed  such  waiver  and  sworn  to  same  (see  sec.  660), 
the  supervisory  board  will  proceed  with  the  prescribed  examina- 
tion. (For  form  of  waiver  see  p.  447.) 

662.  Report  of  the  board. — Upon  the  completion  of  the  examination, 
a  certificate  signed  by  each  member  of  the  board  will  be  attached  to 
the  papers  in  each  case,  stating  whether  or  not  the  candidate  has  any 
objection  to  his  examination  for  promotion  being  conducted  by  the 
statutory  naval  examining  board,  and  that  he  has  received  no  outside 
assistance  during  its  progress.  (For  form  of  certificate  see  p.  447.) 

The  waiver  of  the  candidate  of  his  right  to  appear  in  person,  to- 
gether with  the  examination  papers  of  the  candidate  and  the  fore- 
going certificate  of  the  board,  will  be  forwarded  by  the  supervisory 
board  to  the  president  of  the  statutory  board  which  will  finally  pass 
upon  the  case. 


XIX. 

BOARDS  OF  MEDICAL  EXAMINERS. 

(E.  S.,  1493-1494.) 


305 


' 


BOARDS  OF  MEDICAL  EXAMINERS. 

663.  Physical  examination  before  promotion. — "No  officer  shall  be 
promoted  to  a  higher  grade  on  the  active  list  of  the  Navy,  except  in 
the  case  provided  in  the  next  section,  until  he  has  been  examined  by  a 
board  of  naval  surgeons  and  pronounced  physically  qualified  to 
perform  all  his  duties  at  sea."    (R.  S.,  1493.) 

664.  Physical  disability  due  to  wounds. — "  The  provisions  of  the  pre- 
ceding section  shall  not  exclude  from  the  promotion  to  which  he 
would  otherwise  be  regularly  entitled  any  officer  in  whose  case  such 
medical  board  may  report  that  his  physical  disqualification  was  oc- 
casioned by  wounds  received  in  the  line  of  his  duty,  and  that  such 
wounds  do  not  incapacitate  him  for  other  duties  in  the  grade  to  which 
he  shall  be  promoted."     (R.  S.,  1494.) 

665.  Composition  of  board  for  examination  for  promotion. — In  inter- 
preting the  above-quoted  statute    (sec.   663),  it  is  held  that  the 
wording  "  a  board  of  naval  surgeons "  means  that  a  board  of  two 
medical  officers — or  more — of  the  Navy  is  empowered  to  act,  in  the 
case  of  examination  of  officers  for  promotion.    (File  26521-30.)     (See 
sees.  563,  564  as  to  recorder.) 

666.  Convening  authority,— See  section  615.    The  Secretary  of  the 
Navy,  or  other  duly  authorized  convening  authority  of  a  board  of 
medical  examiners,  may  forward  to  any  commanding  officer  under 
his  command  a  preoept  signed  in  blank  and  direct  such  commanding 
officer  to  fill  in  the  names  of  medical  officers  available  to  serve  on  such 
board  and  the  date  and  place  of  meeting,  and  after  countersigning 
to  forward  same  to  such  officer  as  he  may  name  as  president. 

667.  Physical  examination  of  candidates  for  appointment. — This  ex- 
amination, like  the  examination   (physical)   for  promotion,  shall 
precede  the  mental  and  the  professional;  and  if  the  candidate  be 
found  physically  unfit,  he  shall  not  be  examined  otherwise.    (See 
sec.  629.) 

Under  special  circumstances,  in  the  case  of  candidates  for  appoint- 
ment, it  is  proper  for  the  board  of  medical  examiners  to  certify 
that  a  slight  physical  defect  is  not?  sufficient  to  disqualify,  and  to 
recommend  a  candidate  for  appointment  provided  the  department 
should  see  fit  to  waive  certain  minor  disqualifications  (such  as 
slightly  under  standard  weight  or  standard  height).  In  making 
such  recommendations,  boards  of  medical  examiners  shall  take  every 
precaution  to  safeguard  the  best  interests  of  the  service.  It  is  in- 

307 


308  INSTRUCTIONS  FOR   COURTS  AND  BOARDS. 

tended  that  use  shall  be  made  of  such  recommendations  only  when  a 
candidate  has  a  very  slight  physical  defect  or  varies  slightly  from 
the  physical  standard,  and  possesses  mental  or  professional  qualifica- 
tions for  such  appointment  that  are  notably  higher  than  the  average. 

668.  Composition  of  board  for  examination  for  appointment. — When 
the  candidate  is  one  for  appointment  as  an  acting  assistant  surgeon, 
or  as  assistant  surgeon  in  the  Medical  Reserve  Corps  or  in  the  Dental 
Reserve  Corps,  in  cases  of  necessity ',  the  physical  examination  may 
be  conducted  by  a  single  medical  officer  known  as  a  medical  ex- 
aminer.   In  other  cases  the  physical  examination  of  candidates  for 
appointment  shall  be  conducted  by  a  board  constituted  similarly  to 
the  board  for  the  physical  examination  of  candidates  for  promotion. 

/a  GPK  \ 

(See  sec.  665.) 

669.  Procedure  and  oaths.— As  to  the  organization  of  the  board  and 
oaths  to  members  and  recorder,  see  procedure  and  oaths  under  naval 
examining  boards.     (Sees.  631,  636,  and  637.) 

670.  Record  must  show  what  examination  was  made. — Each  record 
must  state  fully  what  physical  examination  of  the  candidate  was 
made,  and  by  whom. 

671.  In  case  of  candidate  for  promotion — what  considered. — The  physi- 
cal examination  of  a  candidate  for  promotion  shall  relate  only  to  his 
qualifications  to  perform  the  duties  of  the  grade  to  which  he  seeks 
promotion,  and  not  to  those  of  any  other  grade.    The  medical  history 
of  such  candidate  since  the  date  of  his  last  examination  for  promo- 
tion shall  be  considered  in  connection  with  his  physical  examination. 

672.  Certificate  of  candidate  as  to  his  physical  qualifications. — There 
must,  in  every  case,  be  appended  to  the  record  a  certificate,  signed 
by  the  candidate,  stating  his  physical  qualifications.    This  certificate 
must  be  sworn  to  by  a  candidate  for  admission  but  not  by  a  candi- 
date for  promotion.    In  the  case  of  a  candidate  for  admission  this 
certificate  must  state  also  the  time  and  place  of  birth  and  legal  resi- 
dence, and  whether  a  native-born  or  naturalized  citizen.    If  the  latter, 
proof  of  citizenship  must  be  established.     (For  form  see  p.  454.) 

The  above  certificate  is  not  a  mere  matter  of  form,  and,  regardless 
of  whether  an  officer  has  been  doing  duty  or  not,  it  is  intended  to  be 
the  candidate's  statement  of  his  belief  that  he  has  no  physical  ailment 
whatever  of  any  kind,  or  only  such  as  set  forth  in  his  statement.  The 
onus  of  establishing  physical  fitness  for  promotion  is  on  the  candi- 
date, and  it  is  in  view  of  this  principle  that  the  certificate  is  required. 

673.  Finding  and  recommendation  of  the  board. — The  record  must  in 
each  case  show  the  finding  of  the  board  as  to  the  physical  qualifica- 
tions of  the  candidate,  and  whether  it  recommends  him  for  admis- 
sion or  promotion,  as  the  case  may  be,  or  such  other  recommendation 
as  the  board  may  deem  proper.    As  to  recommending  the  waiver  of 
slight  defects  in  the  cases  of  candidates  for  admission,  see  section 


INSTRUCTIONS  FOR  COURTS  AND  BOARDS.  309 

667.    As  to  cases  of  candidates  for  promotion  found  physically  dis- 
qualified, see  section  674. 

674.  In  case  of  physical  failure  of  a  candidate  for  promotion. — "  If  any 
officer  of  the  Navy  shall  fail  in  his  physical  examination  for  pro- 
motion and  be  found  incapacitated  for  service  by  reason  of  physical 
disability  contracted  in  the  line  of  duty,  he  shall  be  retired  with  the 
rank  to  which  his  seniority  entitled  him  to  be  promoted."     (36  Stat, 
1267.)     If,  in  accordance  with  the  above  provision,  a  candidate  for 
promotion  is  found  "  incapacitated  for  service  by  reason  of  physical 
disability  contracted  in  the  line  of  duty"  the  board  of  medidal  ex- 
aminers shall  so  state  in  their  findings.    Attention  is  called  to  the 
fact  that  an  officer  so  incapacitated  for  service  can  not,  when  ordered 
before  a  retiring  board,  benefit  by  the  provisions  of  the  above-men- 
tioned act,  unless  the  board  of  medical  examiners  has  specifically 
stated  in  its  finding  that  the  physical  disability  was  contracted  in  the 
line  of  duty;  care  should  therefore  be  taken  that  these  words  are 
included  in  the  finding  in  all  cases  where  applicable.     ( See  sec.  694. ) 

675.  In  case  of  physical  disability  not  in  the  line  of  duty. — In  case 
the  board  finds  that  the  disability  of  an  officer  appearing  before  it 
was  not  received  in  the  line  of  duty,  it  shall  be  the  duty  of  the  presi- 
dent of  the  board  to  so  inform  such  officer. 

676.  The  record. — The  record  is  made  up,  authenticated,  and  trans- 
mitted in  accordance  with  the  instructions  laid  down  for  naval 
examining  boards.     (See  sees.  646,  650-652.)     But  in  the  case  of 
candidates  for  appointment  to  the  Pay  Corps,  the  board  of  medical 
officers  shall  transmit  their  report  to  the  examining  board  of  pay 
officers.    (See  sec.  617.) 

677.  Revision. — See  section  653,  under  naval   examining  boards, 
which  applies  to  boards  of  medical  examiners. 

678.  Final  action,— See  sections  654  and  674. 


. 

1 79 

- 


XX. 

NAVAL  RETIRING  BOARDS. 

(R.  S.  1443  to  1465.) 


311 


I'JMJ 


• 
NAVAL  EETIEING  BOARDS. 


Page. 

When  ordered 313 

Convening  authority 314 

Constitution. 314 

The  rights  of  the  officer  before  the  board •  314 

Oaths.. > 314 

Powers  of  the  board ;  the  procedure 315 

The  finding 316 

Record 317 

Revision • 317 

Final  action..  317 


WHEN  ORDERED. 

679.  When  ordered, — "Whenever  any  officer,  on  being  ordered  to 
perform  the  duties  appropriate  to  his  commission,  reports  himself 
unable  to  comply  with  such  order,  or  whenever,  in  the  judgment  of 
the  President,  an  officer  is  incapacitated  to  perform  the  duties  of  his 
office,  the  President,  at  his  discretion,  may  direct  the  Secretary  of  the 
Navy  to  refer  the  case  of  such  officer  to  a  board  of  not  more  than 
nine  nor  less  than  five  commissioned  officers,  two-fifths  of  whom 
shall  be  members  of  the  Medical  Corps  of  the  Navy.  Said  board, 
except  the  officers  taken  from  the  Medical  Corps,  shall  be  composed, 
as  far  as  may  be,  of  seniors  in  rank  to  the  officer  whose  disability  is 
inquired  of."  (E.  S.,  1448.) 

When  any  officer  on  the  active  list  becomes  physically  incapaci- 
tated to  perform  the  duties  of  his  office,  and  the  probable  future 
duration  of  such  incapacity  is  permanent  or  indefinite,  he  will  im- 
mediately be  ordered  before  a  retiring  board,  and,  pending  final 
action  upon  the  question  of  his  retirement,  will  not  be  examined 
for  promotion.  The  foregoing  shall  not  apply  to  the  case  of  an 
officer  whose  physical  incapacity  develops  after  he  has  become  due 
for  promotion,  and  who  may,  under  such  circumstances,  be  examined 
physically  by  a  board  of  medical  examiners  before  being  ordered 
before  a  retiring  board. 

313 


314  INSTRUCTIONS  FOR  COURTS  AND  BOARDS. 

CONVENING  AUTHORITY. 

680.  Convening  authority. — See  section  615. 

CONSTITUTION. 

681.  See  section  679.    The  provision  of  the  statute  as  to  the  rank 
of  the  members  is  directory  only,  and  the  decision  of  the  convening 
authority,  as  evidenced  by  the  selection  of  the  members  of  the  board, 
is  conclusive. 

682.  The  recorder.— See  sections  563  and  564. 

THE  EIGHTS  OF  THE  OFFICER  BEFORE  THE  BOARD. 

683.  His  right  to  a  hearing.^-"  No  officer  of  the  Navy  shall  be  retired 
from  active  service,  or  wholly  retired  from  the  service,  without  a  full 
and  fair  hearing  before  such  Navy  retiring  board,  if  he  shall  demand 
it,  except  in  cases  where  he  may  be  retired  by  the  President  at  his 
own  request,  or  on  account  of  age  or  length  of  service,  or  on  account 
of  failure  to  be  recommended  by  an  examining  board  for  promo- 
tion."    (E.  S.,  1455.) 

684.  Interpretation  of  the  above  statute. — This  entitles  an  officer  sub- 
ject to  retirement,  and  not  within  the  exceptions  stated,  to  appear 
before  the  board,  with  counsel,  if  desired,  to  introduce  testimony  of 
his  own,  to  cross-examine  the  witnesses  examined  by  the  board, 
including  the  medical  members  of  the  board  x  who  may  have  taken 
part  in  the  medical  examination,  and  have  stated  or  reported  to  the 
board  the  result  of  the  same.    He  may  also  submit  a  statement  to 
the  board  if  he  so  desires,  or  take  the  stand  as  a  witness  (see  sec. 
623) ,  or  such  officer  may  be  called  as  a  witness  by  the  board.     (C.  M. 
O.  29, 1915,  6.)    If  such  officer  fails  to  appear  before  the  board  when 
ordered,  he  waives  the  right  to  a  hearing,  and  can  not  properly  take 
exception  to  a  conclusion  arrived  at  in  his.  absence. 

685.  Challenge. — The  statutory  right  to  a  "  fair  hearing  "  includes 

the  right  to  a  hearing  by  an  impartial  board,  and  therefore  the  right 

i    11  /• 

to  challenge  for  cause. 
0 

OATHS. 

< 

686.  It  is  provided  by  statute  that  members  of  a  naval  retiring 
board  "  shall  be  sworn  in  each  case  to  discharge  their  duties  honestly 
and  impartially."     (K.  S.,  1450.) 

687.  To  members. — The  recorder  administers  the  following  oath  to 
each  of  the  members : 

"  You,  A —  B — ,  C —  D — ,  etc.,  and  each  of  you  solemnly  swear  (or 
affirm)  that  you  will  honestly  and  impartially  examine  and  report 


INSTRUCTIONS   FOR   COURTS   AND   BOARDS.  315 

upon  the  case  of  -  — ,  IT.  S.  Navy,  now  before  the  board 

and  about  to  be  examined.'" 

688.  To  recorder.— The  president  administers  the  following  oath  to 
the  recorder. 

"  You,  A —  B — ,  do  solemnly  sAvear  (or  affirm)  that  you  will  keep 
a  true  record  of  the  proceedings  of  this  board  in  the  case  of  - 
— ,  noAV  before  the  board  and  about  to  be  examined." 

689.  To  witnesses. — The  following  oath  shall  be  administered  to 
witnesses  by  the  president  of  the  board : 

"  You,  A —  B — .  do  solemnly  swear  (or  affirm)  that  you  Avill  make 
true  ansAvers  to  such  questions  as  may  be  put  to  you  in  the  case  of 
— ,  now  under  examination  by  this  board." 

S  .£89 
POWERS  OF  THE  BOARD;  THE  PROCEDURE. 

690.  Authority  of  retiring  board. — "  Said  retiring  board  shall  be 
authorized  to  inquire  into  and   determine  the   facts  touching  the 
nature  and  occasion  of  the  disability  of  any  such  officer,  and  shall 
haAre  such  powers  of  a  court-martial  and  of  a  court  of  inquiry  as  may 
be  necessary."     (R.  S.,  1449.) 

691.  Powers  of  board. — In  the  execution  of  the  duty  thus  imposed  by 
law,  the  board  is  required  to  ascertain  the  nature  and  occasion  of  the 
disability  and  its  character  and  effect,  as  temporary  or  permanent. 
The  investigation  of  a  retiring  board  is  not  restricted  by  any  statute 
of  limitation.    It  may  inquire  into  the  matter  of  a  disability,  howeArer 
long  since  it  may  have  originated.     In  accordance  Avith  the  above- 
quoted  statute,  the  board  shall  have  and  .exercise  such  powers  of  a 
court-martial  and  of  a  court  of  inquiry  as  may  be  necessary  to  deter- 
mine the  facts  and  reach  a  conclusion  in  the  matter  before  it. 

\     f  M;  i     ±->    (U)'li' I; 

692.  Procedure. — In  general,  the  procedure,  after  the  board  and  the 
recorder  hw  been  svor*  is  *s  follow: 

All  papers  haATing  any  bearing  on  the  physical  or  mental  condition 
of  the  officer  are  read.  The  president  of  the  board  then  directs  the 
medical  members  to  examine  into  the  past  and  present  physical  and 
mental  condition  of  the  officer  under  examination.  After  such  ex- 
amination, the  medical  members  shall  report  Avhether,  in  their  opin- 
ion, the  officer  is  or  is  not  incapacitated  for  actiA*e  service  in  the 
NaA^y.  and  Avhether  his  incapacity  is  or  is  not  the  result  of  an  inci- 
dent of  the  service.  This  preliminarv  report  shall  be  made  orallv  to 
,u  u  -,  L  L 

the  board. 

rru  ^r»  J*>  JLflQ* 

I  hereupon  the  officer  is  asked  Avhether  he  desires  to  question  the 
medical  members,  to  rebut  their  evidence,  or  to  make  a  statement, 

After  the  officer  before  the  board  has  submitted  his  evidence,  or 
declared  that  he  has  nothing  to  offer,  he  shall  be  discharged  from 
further  attendance  before  the  board.  But  care  shall  be  taken  not  to 
26450°— 17 21 


316  INSTRUCTIONS  FOE  COURTS   AND  BOARDS. 

discharge  an  officer  under  examination  until  his  case  is  fully  com- 
pleted. 

The  medical  members  shall  then  submit  a  written  report  to  the 
board,  under  oath,  certifying  as  to  the  past  and  present  physical  and 
mental  condition  of  the  officer,  stating  the  reasons  that  led  them  to 
their  conclusion. 

THE  FINDING. 

•T  .689 

693.  "When  said  retiring  board  finds  an  officer  incapacitated  for 
active  service,  it  shall  also  find  and  report  the  cause  which,  in  its 
judgment,  produced  his  incapacity,  and  whether  such  cause  is  an 
incident  of  the  service."    (R.  S.,  1451.) 

694.  Retirement  of  officer  failing  physically  for  promotion, — The  act 
of  March  4, 1911  (36  Stat.,  1267),  provides  as  follows:  "  Hereafter,  if 
any  officer  of  the  United  States  Navy  shall  fail  in  his  physical  exami- 
nation for  promotion  and  be  found  incapacitated  for  service  by  rea- 
son of  physical  disability  contracted  in  the  line  of  duty,  he  shall  be 
retired  with  the  rank  to  which  his  seniority  entitled  him  to  be  pro- 
moted."   Accordingly,  when  an  officer  has  been  found  by  a  board 
of  medical  examiners  to  be  not  physically  qualified  for  promotion, 
~by  reason  of  physical  disability  contracted  in  the  line  of  duty  (see 
sec.  674) ,  and  such  finding  has  been  approved,  and  the  said  officer  is 
then  ordered  before  a  retiring  board,  the  latter  board,  in  its  finding, 
shall  specifically  state  whether  or  not  the  physical  disability  was  con- 
tracted in  the  line  of  duty;  and  the  words  line  of  duty,  in  all  such 
cases,  must  be  set  forth  in  the  finding  in  order  that  the  officer  may 
fall  under  the  provisions  of'  the  above-quoted  act. 

695.  "Line  of  duty"  and  "Incident  of  the  service."— The  phrase 
"  line  of  duty,"  as  used  in  the  act  of  March  4,  1911  (sec.  694) ,  should 
be  construed  as  having  the  same  meaning  with  "  incident  of  the  serv- 
ice," as  used  in  section  1451  of  the  Revised  Statutes  (sec.  693).    As 
to  what  constitutes  same  see  sections  609-612. 

696.  How  determined. — Courts  of  law  are  guided  by  the  axiom  that 
an  accused  is  innocent  until  he  is 'proved  guilty.     It  does  not,  how- 
ever, follow  that,  in  the  case  of  a  retiring  board,  a  physical  defect 
is  assumed  to  have  resulted  in  line  of  duty  until  the  Government 
has  proved  the  contrary.     By  statute,  the  retiring  board  is  sworn 
to  discharge  its  duties  honestly  and  impartially;  it  is  authorized  to 
inquire  into  and  determine  facts  touching  the  nature  and  occasion 
of  disability ;  and  upon  it  are  conferred  the  powers  of  a  court-martial 
and  court  of  inquiry.     When  it  finds  incapacity,  it  shall  also  find 
and  report  the  cause  which,  in  its  judgment,  produced  incapacity, 
and  whether  such  cause  is  an  incident  of  the  service.     (R.  S.,  1449- 
1451.)     All  questions  relating  to  the  physical  condition  of  an  officer 


INSTRUCTIONS  FOR  COURTS  AND  BOARDS.  317 

shall  be  determined  by  the  full  board  on  all  the  facts.     In  case  of 
dissent  the  majority  report  becomes  the  report  of  the  board; 

697.  In  case  of  physical  disability  not  in  the  line  of  duty. — In  case  the 
board  finds  that  the  disability  of  an  officer  appearing  before  it  was 
not  received  in  the  line  of  duty,  it  shall  be  the  duty  of  the  president 
to  so  inform  such  officer. 

After  a  retiring  board  has  decided  that  prima  fade  the  incapacity 
of  an  officer  is  the  result  of  his  own  misconduct  and  has  afforded  such 
officer  an  opportunity  to  be  heard,  it  may  thereupon,  according  to 
the  evidence,  either  adhere  to  or  change  its  prima  facie  finding. 

RECORD. 

698.  The  record  is  made  up,  authenticated,  and  transmitted  in  ac- 
cordance with  the  instructions  laid  down  for  naval  examining  boards. 
(See  sees.  646,  650-652.) 

REVISION. 

699.  In  any  case  in  which  the  convening  authority  deems  necessary 
he  may  return  the  record  to  the  board  for  a  correction  of  its  pro- 
ceedings, or  for  a  further  inquiry  or  hearing  and  reconsideration 
of  its  conclusions,  as  in  the  case  of  a  court-martial.     As  the  pro- 
ceedings of  a  retiring  board  are  not  a  trial,  the  board  upon  revision 
may  receive  new  evidence. 

FINAL  ACTION. 

700.  "A  record  of  the  proceedings  and  decision  of  the  board  in  each 
case  shall  be  transmitted  to  the  Secretary  of  the  Navy,  and  shall  be 
laid  by  him  before  the  President  for  his  approval,  disapproval,  or 
orders  in  the  case."    (R.  S.,  1452.) 


- 


,OOT 


XXI. 

MARINE  EXAMINING  BOARDS. 

(R.  S.  1493  and  1494.) 
(26  Stat.,  562.) 
(27  Stat.,  321.) 
(30  Stat.,  1009.) 
(39  Stat.,  183.) 
(39  Stat.,  611.) 


319 


. 
HAOII  O/JtfltfAZa  a/IHAM 


,i9b 


MARINE  EXAMINING  BOARDS. 


Page. 

Convening  authority 321 

Constitution 321 

Precept -. 322 

Candidate 322 

Procedure , 322 

Oaths 322 

Witnesses 322 

Form  of  examination 322 

Physical  and  mental  fitness 323 

Moral  fitness 324 

Professional  examination 324 

Finding  and  recommendation i_. 327 

Record 327 

Revision 328 

Final  action 328 

Board  of  medical  examiners ftttriflri»-rf**e«aC  328 



CONVENING  AUTHORITY. 

rib*  ifteO  .60? 
701.  Convening  authority. — See  section  615. 

^ 

CONSTITUTION. 


702.  Constitution. — "Hereafter  promotions  to  every  grade  of  com- 
missioned officers  in  the  Marine  Corps  below  trie  grade  of  com- 
mandant shall  be  made  in  the  same  manner  and  under  the  same 
conditions  as  now  are  or  may  hereafter  be  prescribed,  in  pursuance 
of  law,  for  commissioned  officers  of  the  Army:  Provided,  That  ex- 
amining boards  which  may  be  organized  under  the  provisions  of  this 
act  to  determine  the  fitness  of  officers  of  the  Marine  Corps  for  pro- 
motion shall  in  all  cases  consist  of  not  less  than  five  officers,  three  of 
whom  shall,  if  practicable,  be  officers  of  the  Marine  Corps,  senior  to 
the  officer  to  be  examined,  and  two  of  whom  shall  be  medical  officers 
of  the  Navy :  Provided  further.  That  when  not  practicable  to  detail 
officers  of  the  Marine  Corps  as  members  of  such  examining  boards, 
officers  of  the  line  in  the  Navy  shall  be  so  detailed."     (27  Stat,  321.) 

703.  Medical  members. — The  medical  officers  shall  take  part  only  in 
the  mental  and  physical  examination  of  the  candidate  for  promotion. 
(See  sec.  716.) 

321 


322          INSTRUCTIONS  FOB  COURTS  AND  BOARDS. 

704.  Recorder.  —  A  separate  recorder  shall  be  detailed  who  shall  take 
no  part  in  examining  the  candidate,  but,  under  the  direction  of  the 
board,  shall  record  its  proceedings  and  prepare  the  record. 


IffLQtl 

705.  The  precept  shall  state  the  time  and  place  of  meeting  and 
name  the  membership  of  the  board.    It  may  contain,  be  accompanied 
by,  or  refer  to  special  instructions  relative  to  the  conduct  of  the 
examinations.     In  the  absence  of  such  the  instructions  hereinafter 
set  forth  control. 

CANDIDATE. 

706.  See  sections  620-628,  under  naval  examining  boards,  which 
apply.  . 

PROCEDURE. 

£££        _______  '  >1/I 

707.  See  sections  631-635,  under  naval  examining  boards,  which 
apply  to  marine  examining  boards. 

ff  J  C> 

^1 

UATHS. 

708.  Oath  administered  by  president  to  recorder.—"  You,  A—  B—  ,  do 
solemnly  swear  (or  affirm)  that  you  will  keep  a  true  record  of  the 
proceedings  of  this  board  in  the  case  of  --  ,  now  before 
the  board  and  about  to  be  examined." 

709.  Oath  administered  by  recorder  to  members.  —  "  You,  A  —  B  —  , 
C  —  D  —  ,  E  —  F  —  ,  and  each  of  you  solemnly  swear  (or  affirm)  that 
you  will  honestly  and  impartially  examine  and  report  upon  the  case 
of  --  ,  now  before  the  board  and  "about  to  be  examined." 

710.  Oath  administered  by  president  to  witnesses.  —  Witnesses  before 
testifying  shall  be  sworn  by  the  president  of  the  board,  as  follows: 
':  You,  A  —  B  —  ,  do  solemnly  swear  (or  affirm)  that  you  will  make 
true  answer  to  such  questions  as  may  be  put  to  you  in  the  case 

-ffl  1ST  --  '  now  under  examination  by  the  board." 

)bllii  ,_  .(II  fl 

-o-iq  HlhfiM  -Jilt  }™  ITNESSES.       )jft  ^  Q^v 

711.  See  sections  639-642,  under  naval  examining  boards,  which 
apply  except  that  inquiries  to  officers  regarding  a  candidate's  fitness 
for  promotion  are  addressed  by  the  Commandant  of  the  Marine 
Corps  instead  of  the  Bureau  of  Navigation. 

.ab'inod  ^nhi;  u  ')  SflhfiM  sifo  1- 

FORM  OF  EXAMINATION. 

.aiddnidni  IfidihsM  .807 

712.  Of  what  examination  shall  consist.  —  When  the  candidate  holds 
the  rank  of  lieutenant  colonel  or  below,  the  board  shall  examine  and 
report  upon  (1)  his  mental  and  physical,  (2)  his  moral,  and  (3)  his 


INSTRUCTIONS   FOR   COURTS  AND  BOARDS.  323 

professional  fitness  for  promotion,  provided  that  "  examinations  of 
officers  in  the  grades  of  major  and  lieutenant  colonel  shall  be  confined 
to  problems  involving  the  higher  functions  of  staff  duties  and  com- 
mand." (39  Stat,  183.)  When  the  candidate  holds  the  rank  of 
colonel,  he  shall  be  subject  only  to  "physical,  mental,  and  moral 
examination."  (Act  of  Mar.  3,  1899  (30  Stat.,  1009),  as  affected  by 
act  of  June  3,  1916  (39  Stat.,  183).) 

PHYSICAL  AND  MENTAL  FITNESS. 

713.  Medical  report. — The  medical  members  shall  meet  as  a  board  of 
medical  examiners  (see  sees.  744  and  745)  and  shall  thoroughly  ex- 
amine the  candidate  as  to  his  physical  qualifications  for  promotion. 
They  shall  report  in  writing  to  the  full  board  their  opinion  as  to 
the  candidate's  physical  fitness  for  promotion,  and,  in  case  they  find 
him  unfit,  they  shall  state  the  particular  causes  therefor,  and  whether 
or  not,  in  their  opinion,  the  disability  was  contracted  in  line  of 
duty.     This  report  shall  be  signed  by  the  medical  members  and 
appended  to  the  record. 

714.  Mental  fitness. — The  mental  fitness  shall  be  assumed  unless  a 
doubt  thereof  shall  be  raised  in  the  mind  of  any  member  of  the 
board. 

715.  Medical  record  to  be  read  aloud. — The  medical  record  of  the 
candidate  since  his  last  examination  upon  which  he  was  promoted, 
as  furnished  by  the  Navy  Department,  and  other  documents  per- 
taining to  his  physical  fitness,  including  any  pertinent  extracts  from 
the  military  history,  reports  on  fitness,  interrogatories,  etc.,  shall  be 
read  aloud  and  appended  to  the  record.    In  case  of  entries  indicat- 
ing unfitness,  the  matter  shall  be  investigated  by  the  board. 

716.  The  mental  and  physical  fitness  to  be  decided  by  the  entire 
board. — The  mental  and  physical  fitness  of  the  candidate  and  all 
questions  which  arise  in  connection  therewith  shall  be  voted  upon  by 
each  member  of  the  entire  board,  and  the  votes  of  a  majority  shall 
decide,  except  that  the  candidate  may  not  be  promoted  unless  found 
physically  qualified  by  the  board  of  medical  examiners.      (See  sec. 
744.)     When  the  board  finds  the  candidate  mentally  and  physically 
qualified  for  promotion,  the  medical  officers  shall  be  excused  from 
further  attendance  with  the  board  and  the  remaining  parts  of  the 
examination  shall  be  conducted  by  the  other  members  of  the  board. 

717.  Defects  of  vision. — Defects  of  vision  that  may  be  entirely  cor- 
rected by  glasses  do  not  disqualify  for  promotion,  unless  they  are  due 
to  organic  disease. 

718.  Procedure  on  physical  disqualification. — When  the  board  decides 
that   the   candidate  is   physically   disqualified    for   promotion,   the 
examination  as  to  his  other  qualifications  shall  not  be  held,  but  the 


324          INSTRUCTIONS  FOR  COURTS  AND  BOARDS. 

board  shall  examine  and  report  in  full,  according  to  the  procedure 
of  a  marine  retiring  board,  upon  the  cause  which,  in  its  judgment, 
produced  the  disability,  and  whether  or  not  such  disability  was  con- 
tracted in  the  line  of  duty.  (See  Chap.  XXII.)  If  the  complete 
medical  record  of  the  candidate  is  desired  by  the  board  to  assist  it  in 
arriving  at  its  finding,  this  fact  will  be  communicated  by  telegraph  or 
otherwise  to  the  Commandant  of  the  Marine  Corps,  and  the  board 
will  adjourn  to  await  its  receipt. 

MORAL  FITNESS. 

10391  IfloibdM  .81 Y 

719.  Moral  fitness.— The  moral  fitness  of  the  candidate  shall  be 
assumed,  unless  a  doubt  shall  be  raised  by  evidence  of  record  or  from 
the  general  reputation  of  the  candidate.     In  case  such  a  doubt  should 
arise,  it  is  not  incumbent  upon  the  Government  to  prove  culpability, 
but  the  onus  of  dispelling  such  a  doubt  is  upon  the  candidate. 

720.  In  case  the  moral  fitness  of  the  candidate  is  not  assumed. — If  the 
moral  fitness  of  the  candidate  is  not  assumed,  he  shall  be  furnished 
full  information  as  to  any  allegations  concerning  his  moral  conduct, 
names  of  accusers  and  witnesses,  and  documentary  evidence  against 
him.     He  shall  be  allowed  to  examine  such  witnesses  and  evidence 
and  to  testify  and  introduce  evidence  in  its  own  behalf.     (See  sec. 
711  and  sees.  639-642  as  to  summoning  witnesses  in  this  connection.) 
The  candidate  shall  be  given  an  opportunity  to  make  a  statement 
Avith  reference  to  his  moral  fitness.    This  statement,  if  made,  shall 
be  appended  to  the  record.    (But  see  sec.  623.) 

721.  The  board  is  not  to  consider  any  fact  which  occurred  prior  to  the 
last  examination  of  the  candidate  whereby  he  was  promoted. — See  sec- 
tion 632. 

THE  PROFESSIONAL  EXAMINATION. 

//sod 

722.  The  professional  examination  to  be  oral  and  practical. — Exami- 
nations in  professional  subjects  shall  be  oral  and  practical.     When 
a  candidate  has  been  found  unsatisfactory  in  any  subject  on  oral 
examination,  written  examination  in  such  subject  shall  be  proceeded 
with  immediately  following  the  oral  examination.     In  case  of  failure 
upon  practical  examination  in  any  subject,  the  board  shall  conduct  a 
second  practical  test  of  sufficient  scope  to  determine  beyond  doubt 
the  actual  degree  of  efficiency  of  the  candidate  in  that  subject. 

723.  Presence  of  members  during  examination. — During  the  oral  and 
practical  examinations  all  the  members,  except  the  medical  mem- 
bers, shall  be  present.     Written  examinations,  when  necessary,-  may 
be  conducted  in  the  presence  of  one  member  of  the  board,  for  which 
purpose  the  board  may  be  divided  into  committees  before  whom  the 
examinations  will  be  continued  from  day  to  day  until  completed, 


INSTRUCTIONS  FOR  COURTS  AND  BOARDS.  325 

after  which  the  board  shall  reassemble  to  determine  its  findings.  In 
case  of  the  absence  of  a  member  or  of  the  recorder,  at  a  time  when 
the  full  board  is  in  session,  the  record  shall  show  the  reason  therefor, 
and,  if  the  absence  is  to  be  more  than  temporary,  the  board  shall 
adjourn  and  the  president  shall  inform  the  convening  authority  of 
the  facts. 

724.  General  character  of  the  professional  examination. — The  exami- 
nation as  to  the  candidate's  professional  fitness  shall  be  such  as  will 
fully  test  his  knowledge  of  the  general  profession  of  arms,  of  all  the 
details  of  the  part  or  parts  of  his  profession  in  which  by  reason  of 
his  opportunities  he  should  have  perfected  himself,  and  of  the  gen- 
eral principles  of  all  the  duties  that  may  devolve  upon  him  by  reason 
of  his  promotion  to  the  next  higher  grade.     In  all  examinations  the 
board  shall  form  their  opinion  of  an  officer's  professional  qualifica- 
tions by  comparison  of  his  knowledge  with  his  age,  service,  and 
opportunities  for  acquiring  such  knowledge.    The  examination  shall 
be  sufficiently  comprehensive  and  exhaustive  to  determine  the  degree 
of  proficiency  of  the  candidate  in  each  subject.    The  use  of  diagrams 
and  sketches  to  expedite  and  elucidate  the  answers  to  questions  is 
authorized. 

725.  Scope  of  examination. — The  board  will  confine  its  questions  on 
the  oral,  written  and  practical  examinations  to  the  latest  editions  of 
various  professional  publications  as  set  forth  from  time  to  time  in 
Marine  Corps  Orders,  except  when,  in  the  opinion  of  the  board,  the 
candidate  for  promotion  has  not  had  sufficient  time  properly  to  pre- 
pare himself  in  the  latest  edition  of  any  specified  publication.     In 
this  event,  the  questions  may  be  based  on  the  preceding  edition  of 
the  work.    Marine  Corps  orders  will,  from  time  to  time,  prescribe 
the  scope  and  the  various  subjects  for  the  examination  of  officers  of 
the  staff  departments  and  of  the  line,  who  are  candidates  for  pro- 
motion.    Officers  of  the  line  detailed  in  the  staff  departments  will 
be  examined  in  the  same  subjects  as  officers  of  the  line  not  so  detailed. 
Boards  will  strictly  adhere  to  these  prescribed  subjects. 

726.  Troops  and  material  to  be  furnished. — Commanding  officers  of 
posts  at  or  in  the  vicinity  of  which  boards  may  be  appointed  to 
meet  shall  furnish,  upon  request,  such  available  troops  and  material 
as  may  be  required  by  boards  for  holding  practical  examinations.    In 
case  of  unpropitious  weather,  practical  exercises  may  be  postponed 
from  day  to  day,  but  shall  never  be  omitted  or  curtailed. 

727.  Preparation  of  questions  and  marking. — Before  beginning  the 
examination  in  a  subject,  the  board  shall  prepare  such  questions,  not 
more  than  ten,  and  such  practical  exercises  as  it  may  deem  appro- 
priate for  testing  the  candidate's  knowledge  and  ability.     As  each 
question  is  answered,  or  each  exercise  completed,  each  member  of 
the  board  shall  note  his  estimate  of  the  value  of  the  answer  given  or 


INSTRUCTIONS  FOR   COURTS  AND  BOARDS. 

of  the  exercise  conducted.  These  estimates  shall  be  made  on  a  scale 
of  4  to  0,  4  representing  perfect,  and  the  average  of  a  member's 
estimates  shall  be  his  mark  for  the  subject.  The  average  of  the 
members'  marks  shall  be  the  mark  of  the  board  in  that  subject.  In 
case  the  mark  of  the  board  in  any  subject  is  less  than  3.0,  the  can- 
didate shall  be  considered  as  unsatisfactory  in  that  subject,  and  the 
board  will  proceed  with  the  written  examination,  or  the  second  prac- 
tical exercise,  as  directed  in  section  722,  and  the  mark  attained  therein 
will  be  the  candidate's  mark  in  that  subject.  No  officer  will  be 
recommended  for  promotion  who  fails  to  attain  a  mark  of  3.0  in 
each  subject,  including  general  efficiency. 

728.  Examinations  to  continue  from  day  to  day. — The  candidate  shall 
be  furnished  only  such  number  of  questions  or  be  required  to  conduct 
such  practical  exercises  as  he  may  be  able  to  answer  or  complete  be- 
fore a  recess  or  adjournment  is  taken.    Examinations  shall  continue 
from  day  to  day,  Sundays  and  holidays  excepted,  until  completed. 

729.  Officers  holding  certificates  from  service  schools. — Except  that 
there  are  no  exemptions  from  examination  as  to  mental,  physical, 
and  moral  fitness,  as  to  general  efficiency,  and  as  to  practical  drills 
and  exercises  involving  actual  command  of  troops,  where  such  are 
prescribed,  officers  holding  certificates  from  the  service  schools  enu- 
merated below  are  exempt  from  examination  in  the  subjects  men- 
tioned therein,  and  officers  holding  certificates  from  the  Naval  War 
College  and  Army  War  College  are  exempt  from  all  examination, 
with  the  exceptions  noted  above,  when  the  vacancy  accrues  or  the 
examination  is  held  within  the  periods  subsequent  to  date  of  certifi- 
cate hereinafter  prescribed : 

(a)  Marine  Officers'   School:  Passed   with   distinction,  5   years; 
passed  with  credit,  4  years ;  passed,  3  years. 

(b)  Army  School  of  the  Line:  Honor  graduate,  5  years;  distin- 
guished graduate,  4  years ;  graduate,  3  years. 

(c)  Naval  War  College:  6  years. 

( d)  Army  War  College :  6  years. 

730.  Mark  in  general  efficiency;  how  determined. — The  mark  in  gen- 
eral efficiency  shall  be  based  upon  reports  of  fitness,  answers  to  inter- 
rogatories;  documentary  evidence  submitted  to  the  board  by  the 
Navy  Department,  the  Commandant  of  the  Marine  Corps,  or  the 
candidate ;  and  such  other  relevant  evidence  as  may  be  submitted  by 
the  candidate  or  obtained  b}^  the  board  on  its  own  initiative.    When 
unsatisfactory,  the  candidate  must  be  afforded  opportunity  to  be 
heard  thereon. 

731.  Marks  reported. — Marks  in  each  subject  shall  be  reported.    In 
case  of  an  unsatisfactory  mark  in  any  subject,  oral  or  practical,  it 
shall  be  entered  in  red  ink,  and  the  mark  in  the  written  examination 
or  second  practical  examination  (see  sec.  722)  shall  be  entered  imme- 


INSTRUCTIONS   FOR   COURTS  AND  BOARDS.  3 '2 7 

diately  thereafter.    This  second  mark,  if  unsatisfactory,  shall  also  be 
in  red  ink. 

THE  FINDING  AND  RECOMMENDATION. 

732.  Rule  governing. — See  section  643. 

733.  How  expressed. — The  finding  and  recommendation  of  the  board 
shall  state  whether  or  not  the  candidate  is  found  qualified  to  per- 
form the  duties  of  the  next  grade  to  which  he  will  be  eligible  under 
each  of  the  heads  enumerated  in  section  712,  and  whether  or  not  the 
board  recommends  his  promotion  thereto.    It  shall  also  specifically 
name  the  grade  or,  if  more  than  one,  grades  for  promotion  to  which 
the  candidate  has  been  examined. 

734.  How  signed. — Except  as  provided  in  the  following  section,  the 
finding  and  recommendation  of  the  board  shall  be  signed  by  all  con- 
curring members,  exclusive  of  medical  members.     Any  member,  ex- 
cept  a  medical   member,   who   dissents   therefrom   shall   state   his 
reasons  therefor,  which  reasons  shall  be  entered  in  the  record  after 
the  finding  of  the  other  members  and  signed  by  the  dissenting 
member. 

735.  In  case  of  physical  disqualification. — In  case  of  physical  dis- 
qualification the  procedure  outlined  in  section  718  is  followed. 

736.  Findings  and  recommendations  to  be  regarded  as  confidential.— 
The  findings  and  recommendations  of  the  board  shall  be  regarded 
by  the  members  and  the  recorder  as  confidential  until  they  shall 

have  been  made  public  by  the  department. 

" 

THE  RECOED 

-lofi 

737.  See  sections  646-647  and  649-652,  under  naval  examining 
boards,  which  apply  to  the  record  of  a  marine  examining  board. 

738.  Candidate's  certificates. — The  candidate's  certificate  as  to  his 
physical  qualifications  (see  sec.  672,  which  applies)  shall  be  signed 
by  himself,  as  of  the  date  of  examination.    At  the  conclusion  of  the 
examination  the  candidate  shall  be  called  upon  to  sign  and  submit  a 
certificate  to  the  effect  that  he  has  not  received  assistance  from  any 
unauthorized  source.     Both  of  the  above  certificates  shall  be  ap- 
pended to  the  record.    (For  form  see  pp.  473-474.) 

739.  Copies  of  questions,  answers,  marks,  etc.,  appended. — There  shall 
be  appended  to  the  record  in  each  case  a  copy  of  all  questions  asked 
and  a  description  of  all  practical  exercises,  which  will  show,  in  the 
case  of  the  oral  and  practical  examinations,  the  marks  assigned  by 
the  individual  members  of  the  board  and  the  marks  assigned  by  the 
board  as  a  whole  to  each.    In  the  case  of  a  written  examination,  each 

question  shall  be  attached  to  the  record  together  with  the  answers 

...       ,      t,  ,.  -.  , 

thereto  written  by  the  candidate. 

J  •*'.••  oiJ!>93  nr  batou 


328  INSTRUCTIONS  FOB  COURTS  AND  BOARDS. 

EEVISION. 

740.  See  section  053,  under  naval  examining  boards,  which  applies. 

FINAL  ACTION. 

t 

741.  Marine  examining  boards,  being  governed  by  the  laws  relating 
to  promotion  in  the  Army  (see  sec.  702),  do  not  require  the  action 
of  the  President,  but  may  be  finally  acted  upon  by  the  Secretary  of 
the  Navy. 

742.  In  case  of  .an  officer  found  "  unfit  for  promotion." — i;  *     *     *    if 
any  officer  fails  to  pass  a  satisfactory  examination  and  is  reported 
unfit  for  promotion,  the  officer  next  below  him  in  rank,  having 
passed  said  examination,  shall  receive  the  promotion.     And  pro- 
vided, That  should  the  officer  fail  in  his  physical  examination  and 
be  found  incapacitated  for  service  by  reason  of  physical  disability 
contracted  in  the  line  of  duty  he  shall  be  retired  with  the  rank  to 
which  his  seniority  entitled  him  to  be  promoted ;  but  if  he  should 
fail  for  any  other  reason  he  shall  be  suspended  from  promotion  for 
one  year,  when  he  shall  be  reexamined,  and  in  case  of  failure  on  such 
reexamination  he  shall  be  honorably  discharged  with  one  year's  pay 
from  the  Army    *    *    *  "     (26  Stat.,  562,  act  regulating  promotions 
in  the  Army,  applicable  to  the  Marine  Corps). 

743.  In  case  of  professional  failure. — "In  lieu  of  suspension  from 
promotion  of  any  officer  of  the  Marine  Corps  who  hereafter  fails  to 
pass  a  satisfactory  professional  examination  for  promotion,  or  who 
is  now  under  suspension  from  promotion  by  reason  of  such  failure, 
such  officer  shall  suffer  loss  of  numbers,  upon  approval  of  the  recom- 
mendation of  the  examining  board,  in  the  respective  ranks,  as  fol- 
lows: Lieutenant  colonel,  one;  major,  two;  captain,  three:  first  lieu- 
tenant, five ;  second  lieutenant,  eight :  Provided,  That  any  such  officer 
shall  be  reexamined  as  soon  as  may  be  expedient  after  the  expiration 
of  six  months  if  he  in  the  meantime  again  becomes  due  for  promo- 
tion, and  if  he  does  not  in  the  meantime  again  become  due  for 
promotion  he  shall  be  reexamined  at  such  time  anterior  to  again  be- 
coming due  for  promotion  as  may  be  for  the  best  interest  of  the 
service:  Provided  further,  That  if  any  such  officer  fails  to  pass  a 
satisfactory  professional  reexamination  he  shall  be  honorably  dis- 
charged with  one  year's  pay  from  the  Marine  Corps."     (39  Stat., 
611.) 

BOAKD  OF  MEDICAL  EXAMINERS. 

744.  R.  S.  1493  and  1494  apply  to  Marine  Corps.—"  The  provisions  of 
sections  fourteen  hundred  and  ninety-three  and  fourteen  hundred 
and  ninety-four  of  the  Eevised  Statutes  of  the  United  States  shall 
apply  to  the  Marine  Corps."     (39  Stat.,  611.)     E.  S.  1493  and  1494 
are  quoted  in  sections  663  and  664. 


INSTRUCTIONS   FOR   COURTS  AND  BOARDS.  329 

745.  Board  of  medical  examiners  necessary, — The  above  statute  makes 
necessary,  in  the  case  of  candidates  for  promotion  in  the  Marine 
Corps,  an  examination  by  a  board  of  medical  examiners  as  well  as 
by  a  marine  examining  board.  For  procedure  of  a  board  of  medical 
examiners  see  Chapter  XIX.  The  board  of  medical  examiners  may 
consist  of  the  medical  members  of  the  marine  examining  board  but 
must  meet  as  a  separate  board  and  make  a  separate  report,  which 
will  be  appended  to  the  report  of  the  marine  examining  board. 


' 

Bxa  iBoitera  lo  btsoS. 

. 

. 

tHfl      I 


XXII. 

MARINE  RETIRING  BOARDS. 

(R.  S.  1622-1623;  1245-1253.) 


26450°— 17 22        •  331 


.11. 

-r/iifln 


MARINE  RETIRING  BOARDS. 


Page. 

When  ordered 333 

Convening  authority 333 

Constitution 333 

The  rights  of  the  officer  before  the  board 334 

Oaths 334 

Powers  of  the  board — procedure 335 

The  finding 1 ^ ' 335 

Record 335 

Revision 336 

Final  action__  336 


WHEN  ORDERED. 

746.  "When  any  officer  has  become  incapable  of  performing  the 
duties  of  his  office,  he  shall  be  either  retired  from  active  service,  or 
wholly  retired  from  the  service,  by  the  President,  as  hereinafter 
provided."     (R.  S.,  1245.) 

When  any  officer  on  the  active  list  becomes  physically  incapaci- 
tated to  perform  the  duties  of  his  office,  and  the  probable  duration 
of  such  incapacity  is  permanent  or  indefinite,  he  will  immediately 
be  ordered  before  a  retiring  board,  and,  pending  final  action  upon 
the  question  of  his  retirement,  will  not  be  examined  for  promotion. 
But  when  an  officer's  physical  incapacity  develops  after  he  has  be- 
come due  for  promotion,  the  provisions  of  section  718  apply. 

CONVENING  AUTHORITY. 

747.  See  section  615. 

CONSTITUTION. 

748.  "  The  commissioned  officers  of  the  Marine  Corps  shall  be  re- 
tired in  like  cases,  in  the  same  manner,  and  with  the  same  relative 
conditions,  in  all  respects,  as  are  provided  for  officers  of  the  Army, 
except  as  is  provided  in  the  next  section."    (R.  S.,  1622.) 

749.  Composition  of  board. — "  In  the  case  of  an  officer  of  the  Marine 
Corps,  the  retiring  board  shall  be  selected  by  the  Secretary  of  the 
Navy,  under  the  direction  of  the  President.    Two-fifths  of  the  board 

333 


334  INSTRUCTIONS  FOE  COURTS  AND  BOARDS. 

shall  be  selected  from  the  Medical  Corps  of  the  Navy,  and  the  re- 
mainder shall  be  selected  from  officers  of  the  Marine  Corps,  senior  in 
rank,  so  far  as  may  be,  to  the  officer  whose  disability  is  to  be  inquired 
of."  (R.  S.,  1623.) 

750.  Number  on  board. — A  retiring  board  shall  consist  "of  not  more 
than  nine  nor  less  than  five  officers."     (R.  S.,  1246.) 

751.  Hank  of  members. — The  provision  of  the  statute  as  to  the  rank 
of  the  members  is  directory  only,  and  the  decision  of  the  convening 
authority,   as  evidenced  by  the  selection   of  the  members   of   the 
board,  is  conclusive. 

752.  The  recorder. — See  sections  563  and  564, 
. 

THE  RIGHTS  OF  THE  OFFICERS  BEFORE  THE  BOARD. 

753.  Officers  entitled  to  a  hearing. — "Except  in  cases  where  an  offi- 
cer may  be  retired  by  the  President  upon  his  own  application,  or  by 
reason  of  his  having  served  forty-five  years,  or  of  his  being  sixty- 
two  years  old,  no  officer  shall  be  retired  from  active  service,  nor  shall 
an  officer,  in  any  case,  be  wholly  retired  from  the  service,  without 
a  full  and  fair  hearing  before  an  Army  retiring  board,  if,  upon  due 
summons,  he  demands  it "    (E.S.,  1253.)  _  ',i}ofa- 

754.  Interpretation  of  the  above  statute.-See  section  684. 

755.  Challenge.     See  section  685. 

Q 

' 

756.  It  is  provided  by   statute  that  the  members  of   a   retiring 
board  "  shall  be  sworn  in  every  case  to  discharge  their  duties  honestly 
and  impartially."     (R.  S,  1247.) 

757.  To  the  members.-The  recorder  of  the  board  administers  the 
following  oath  to  each  of  the  members: 

"You,  A B -,  C — —  D -,  etc.,  and  each  of  you,  sol- 
emnly swear  (or  affirm)  that  you  will  honestly  and  impartially 
examine  and  report  upon  the  case  of  -  — ,  U.  S.  Marine 

Corps,  now  before  the  board  and  about  to  be  examined." 

758.  To  the  recorder. — The  president  of  the  board  then  administers 
the  following  oath  to  the  recorder : 

"  You,  A B ,  do  solemnly  swear  (or  affirm)  that  you  will 

keep  a  true  record  of  the  proceedings  of  this  board  in  the  *  case 
of  — ,  now  before  the  board  and  about  to  be  examined." 

759.  To  witnesses.— The  president  of  the  board  shall  administer 
the  following  oath  to  witnesses : 

"  You,  A B -,  do  solemnly  swear  (or  affirm)  that  you  will 

make  true  answers  to  such  questions  as  may  be  put  to  you  in  the 
case  of ,  now  under  examination  by  this  board." 


INBTEUCTIONS  FOR  COURTS  AND  BOARDS.  335 

POWERS  OF  THE  BOARD — THE  PROCEDURE. 

760.  Authority  of  retiring  board. — "A  retiring  board  may  inquire 
into  and  determine  the  facts  touching  the  nature  and  occasion  of  the 
disability  of  any  officer  who  appears  to  be  incapable  of  performing 
the  duties  of  his  office;,  and  shall  have  such  powers  of  a  court-martial 
and  of  a  court  of  inquiry  as  may  be  necessary  for  that  purpose." 
(R.S.,1248.) 

761.  Powers. — See  section  691,  .  YtfOBITJKM,i   juft  jwifW   077 

762.  Papers  bearing  on  physical  condition  read. — After  the  board  and 
the  recorder  have  been  sworn,  all  papers  having  any  bearing  on  the 
physical  condition  of  the  officer  under  examination  shall  be  read. 
The  medical  officers  are  then  directed  to  examine  into  the  past  and 
present  physical  condition  of  the  officer  before  the  board. 

763.  Inquiry  to  be  made  as  to  whether  the  officer  does  or  does  not  de- 
sire retirement. — The  officer  before  the  board  is  then  asked  whether 
he  desires  to  be  retired.    If  he  replies  in  the  affirmative,  he  shall  be 
sworn  as  a  witness  and  state  under  oath  the  nature  and  cause  of  his 
disability.    The  recorder  or  the  board  will  ask  such  questions  as  will 
help  to  bring  out  the  facts.    He  may  also  be  interrogated  as  to  his 
military  history,  if  it  be  deemed  desirable  to  do  so.     If  the  officer 
does  not  desire  to  be  retired,  his  examination,  and  that  of  any  wit- 
nesses he  may  wish  to  call,  shall  be  postponed  until  after  the  medical 
members  have  been  examined.    (See  C.  M.  O.  29, 1915,  6.) 

764.  Eeport  of  medical  officers. — The  senior  medical  officer  of  the 
board  is  the  next  witness.    He  is  called  on  to  submit  the  result  (re- 
duced to  writing  and  signed  by  the  medical  officers)  of  the  medical 
examination  of  the  officer  before  the  board,  And  he  is  interrogated  as 
to  the  cause  and  permanency  of  the  disability  and  the  degree  of  in- 
capacity for  active  service.    The  other  medical  officer  (s)  is  (are) 
(similarly  examined. 

765.  Extent  of  the  inquiry,— See  section  684, 

THE  FINDING. 

766.  Hetiring  board  must  state  whether  incapacity  is  incident  of  serv- 
ice.— "  When  the  board  finds  an  officer  incapacitated  for  active  serv- 
ice, it  shall  also  find  and  report  the  cause  which,  in  its  judgment,  has 
produced  his  incapacity,  and  whether  such  cause  is  an  incident  of 
service."     (E.  S.,  1249.)     See,  in  this  connection,  sections  695,  696, 
and  742. 

RECORD. 

•  767.  As  to  making  up,  authenticating,  and  transmitting  the  record, 
see  sections  646  and  650-652. 


336  INSTRUCTIONS  FOR  COURTS  AND  BOARDS. 

REVISION. 

768.  See  section  099. 

FINAL  ACTION. 

769.  The  proceedings  and  decision  of  the  board  shall  be  laid  before 
the  President  for  his  approval  or  disapproval  and  orders  in  the  case. 
(E,  S.,  1250.) 

770.  When  the  incapacity  is  a  result  of  an  incident  of  service. — 
"  When  a  retiring  board  finds  that  an  officer  is  incapacitated  for  active 
service,  and  that  his  incapacity  is  the  result  of  an  incident  of  service, 
and  such  decision  is  approved  by  the  President,  said  officer  shall  be 
retired  from  active  service  and  placed  on  the  list  of  retired  officers." 
(R,  S.,  1251.)    See,  in  this  connection,  section  742. 

771.  When  the  incapacity  is  not  the  result  of  an  incident  of  service. — 
"  When  the  board  finds  that  an  officer  is  incapacitated  for  active  serv- 
ice, and  that  his  incapacity  is  not  the  result  of  any  incident  of  service, 
and  its  decision  is  approved  by  the  President,  the  officer  shall  be 
retired  from  active  service,  or  wholly  retired  from  the  service,  as 
the  President  may  determine."     (R.  S.,  1252.) 


isoffio  IsoiJbeflr  to  taoqaH  .£87 


PART  II. 

PROCEDURE  FOR  COURTS 
AND  BOARDS  IN  THE  NAVY. 


(I  THA'I 

o  flcr*  a/iLj 

!IT  ra  gQflAOa  f I 


I. 

GENERAL  COURTS  MARTIAL. 

(Chapter  IX.— Part  I.I 


339 


.JAlTfl  JAflH 


INCIDENTS  OF  A  TKIAL  BY  GENERAL  COUKT-MAETIAL. 


1.  Court  meets. 

2.  Provost  marshal  reports. 

3.  Stenographer  (clerk)  introduced. 

4.  Accused  introduced.  » 

5.  Accused  signifies  wishes  as  to  counsel. 

6.  Counsel,  if  any,   introduced. 

7.  Precept  and  other  documents  relating  to  organization  read  by  judge  advocate. 

8.  Challenge  of  members. 

9.  Judge  advocate  sworn  by  president. 

10.  Members  sworn   by   judge   advocate. 

11.  Stenographer  (clerk)   sworn  by  judge  advocate. 

12.  Has  accused  received  copy  of  charges  and  specifications?    If  so,  when? 

33.  Form  of  charges  and  specifications  considered  and  pronounced  correct   (or 
as  the  case  may  be). 

14.  Accused  asked  if  he  is  ready  for  trial. 

15.  All  witnesses  not  otherwise  connected  with  the  trial  directed  to  withdraw. 

16.  Letter  containing  charges  and  specifications  read. 

17.  Arraignment. 

18.  Preliminary  motion    (if  any). 

19.  Plea  to  issue. 

20.  Prosecution  begins. 

21.  Prosecution  rests. 

22.  Defense  begins. 

23.  Defense  rests. 

24.  Rebuttal. 

25.  Surrebuttal. 

26.  Statements  or  arguments. 

27.  Trial  finished. 

28.  Court  cleared  for  deliberation  on  finding. 

29.  Judge  advocate  recalled  to  record  finding. 

30.  Judge  advocate  informs  court  as  to  previous  convictions. 

81.  Court  opened  to  receive  any  record  of  previous  convictions. 

82.  Court  cleared  for  deliberation  on  sentence. 

83.  Judge  advocate  recalled  to  record  sentence. 

84.  Adjournment  (or  court  opened  to  take  up  next  case). 

341 


JAITSA1&TS1 

CASE  or 
LIEUTENANT  X—        -  Y.  Z —    — , 

IT.  S.  NAVY, 
JULY  16    19 . 

85 

. 

RECORD  OF  PROCEEDINGS 

i  .7 
OF   A 

GENERAL  COURT  MARTIAL 

CONVENED   AT 

THE  NAVY  YARD,  PHILADELPHIA,  PA., 

BY   ORDER   OF 

THE  SECRETARY  OF  THE  NAVY. 
82  to  92. 

Var.  — . convened  on  board  the  U.  S.  S.  Pennsylvania  by  order  of  the 

commander  in  chief,  U.  S.  Atlantic  Fleet. 

218 

Var,  — , 

Letter  to  commandant,  Portsmouth,  July  *— ,  19—. 

Letter  to  auditor,  July  —-,  10—. 

388 

. 
Copy  furnished. 

To**  — Oot>y  waived 

ftttlbaft  bioodi  ot  h»L 

368  to  369  atn&ovb/: 

• 
91 

^^  iri,  .8?. 

.(eaut>  Jxsa  qu  s/taJ  ctf  beuecjo  liuos  uuj  jnecaanjotby 

:•          : 


PROCEDURE  FOR  COURTS  AND  BOARDS.  343 

PKECEPT  FOR  GENERAL  COURT  MARTIAL. 

NAVY  DEPARTMENT, 
Washington,  July  — ,  19 — . 

y         5          y        ? 

To :  Captain  A B,  G          — ,  U.  S.  Navy,  navy  yard,  Philadelphia,  Pa., 

via  commandant. 
Subject :  Precept  for  a  general  court-martial. 

1.  A  general  court-martial  is  hereby  ordered  to  convene  at  the  navy  yard, 
Philadelphia,  Pa.,  at  10  o'clock  :i.  in.,  on  Monday,  July  — ,19 — ,  or  as  soon  there- 
after as  practicable, -for  the  trial  of  such  persons  as  may  be  legally  brought 
before  it. 

2.  The  court  is  composed  of  the  following  members,  any  live  of  whom  aiv 
empowered  to  act,  viz : 

Captain  A  -         -  B,  C  -      — ,  U.  S.  Navy. 

Commander  D  —  —  E,  F  -      — ,  U.  S.  Navy. 

Captain  G  -        -  H,  I  -      — ,  U.  S.  Marine  Corps. 

Lieutenant  J  -        -  K,  L  -      — ,  U.  S.  Navy. 

Lieutenant  M  -        -  N,  O  -      — ,  U.  S.  Navy. 

First  Lieutenant  P  -        -  Q,  R  -      — ,  U.  S.  Marine  Corps. 

Lieutenant  (j.  g.)  S  -       -  T,  U ,.U.  S.  Navy. 

219  to  227 

and  of  First  Lieutenant  V  -        -  V,  W  -      — ,  U.  S.  Marine  Corps,  as  judge 
advocate. 

251 

3.  No  other  officers  can  be  detailed  without  injury  to  the  service. 

4.  Detachment  of  an  officer  from  his  ship  or  station  does  not  of  itself  relieve 
him  from  duty  as  a  member  or  judge  advocate  of  a  court.     Specific  orders  for 
such  relief  are  necessary. 

5.  (This  employment  on  shore  duty  is  required  by  the  public  interests.)     The 
court  is  authorized  to  adjourn  over  any  holiday  prescribed  by  article  R-1289. 
U.   S.  Navy  Regulations,  1913. 

In  case  a  new  precept  is  issued  to  a  court  already  in  session,  add:  You  will 
inform  the  members  and  the  judge  advocate  that  they  will  continue  on  court- 
martial  duty  under  their  previous  orders. 


Secretary  of  the  Navy. 
228  to  231 

In  case  the  convening  authority  derives  such  authority  from  the 
Secretary  of  the  Navy,  see  p.  367. 

• 

FIRST  DAY. 

NAVY  YARD,  PHILADELPHIA,  PA., 
Var. — U.  S.  S.  "PENNSYLVANIA,"  off —    — , 

Thursday,  July  16, 19—. 

215  to  217 
The  court  met  at  10a.m. 


344  PROCEDURE  FOR  COURTS  AND  BOARDS. 

Present : 

Captain  A—        -  B.  C—     — ,  U.  S.  Navy ; 
Commander  D—       -  E.  F—      — ,  U.  S.  Navy; 
Captain  G—       -  H.  I—      — ,  U.  S.  Marine  Corps ; 
Lieutenant  J—       -  K.  L—     — ,  U.  S.  Navy ; 

Lieutenant  M—       -  N.  O ,  U.  S.  Navy; 

First  Lieutenant  P Q,  R ,  U.  S.  Marine  Corps ;  and 

Lieutenant  (j.  g.)  S—        -  T.  U ,  U.  S.  Navy,  members,  and 

First  Lieutenant  V-        -  V.  W-  ,  U.  S.  Marine  Corps,  Judge 

Advocate. 

358 

First  Lieutenant  C —  —  B.  A —  — ,  U.  S.  Marine  Corps,  re- 
ported as  provost  marshal. 

274  to  275 

The  Judge  Advocate  introduced  F E.  D — : as  stenog- 
rapher (clerk)  (interpreter),  stating  the  authority  whereby  he  was 
appointed  as  such. 

269  to  273 

The  accused  entered  and  stated  that  he  did  not  wish  counsel. 

263  to  264 

Var.  1. — . entered  and  requested  that  Ensign  L —   —  N —        — ,  U.  S. 

Navy,  act  as  his  counsel.     (Ensign  N entered.) 

Var.  2. — The  accused  was  informed  that  his  request  to  have  Ensign  L 

N act  as  his  counsel  was  not  approved  for  the  reason  that  (give  reason)  ; 

he  then  requested  that  Lieutenant  O P ,  U.  S.  Navy,  act  as  his 

counsel.  Or,  He  thereupon  requested  that  counsel  be  detailed  for  him,  and 
the  commandant  (senior  officer  present)  was  requested  by  the  court  to  detail 
an  officer  to  act  as  such. 

265  to  268 

(Should  the  judge  advocate  require  counsel). 

The  judge  advocate  read  an  order  from  the  convening  authority, 

copy  (original)  appended,  marked  " ,"  detailing  Lieutenant 

B B.  B ,  U.  S.  Navy,  to  act  as  counsel  to  assist  the  judge 

advocate.  Lieutenant  B entered. 

Var.  — . ,  authorizing  Mr.  A —    —  A.  A ,  of  the  Department  of 

Justice,  to  act  as  counsel  to  assist  the  judge  advocate.     Mr.  A entered. 

260  to  262 

The  judge  advocate  read  the  precept  (and  modifications  thereof), 

copy  prefixed,  marked  " ." 

w  r  5 

229  to  230 


I'ROOKDUKE   FOE   COURTS  AND   BOARDS.  345 

Var. — In  case  any  member  or  members  are  absent  add,  and  the  medical  cer- 
tificate (orders  detaching,  etc.},  in  the  case  of ,  copy  prefixed,  marked, 

,"  (or,  and  the  letter  from explaining  his  absence,  copy  prefixed, 

marked  " "). 

242  to  247 

The  accused  stated  that  he  did  not  object  to  any  member. 

Var.  1. — The  accused  objected  to  Lieutenant  J K.  I; —    — ,  U.  S.  Navy, 

because  (here  state  reason). 

The  court  was  cleared,  the  challenged  member  did  not  wish  to  make  any 
reply  (or  replied  as  follows  —  — )  and  withdrew. 

(Should  the  accused  wish  to  examine  the  challenged  member.)  • 

Upon  request  of  the  accused,  the  challenged  member  took  the  stand  and  was 
examined  on  his  voir  dire  as  follows : 

(Examination  as  hereinafter  given  for  the  defense.) 

(Should  the  accused  wish  to  support  his  challenge  by  the  evidence  of  wit- 
nesses. ) 

— '  a  witness  for  the  accused,  was  called  and  examined  on  his  voir  dire 
as  follows : 

The  court  was  cleared. 

The  court  was  opened.  All  parties  to  the  trial  entered;  the  president  an- 
nounced that  the  objection  of  the  accused  was  sustained,  and  Lieutenant  J 

K.  L —      -  was  excused  from  serving  as  a  member  in  this  case  (or,  the  presi- 
dent announced  that  the  objection  of  the  accused  was  not  sustained). 

The  accused  did  not  object  to  any  other  member.  (Or,  -  -  next  objected 
to  -  — .) 

(Same  procedure  as  above.) 

Var.  2. — The  judge  advocate  objected  to  —  — .  (Same  procedure  as  in  the 
case  of  a  challenge  by  the  accused,  except  that  examinations  are  made  as  here- 
inafter given  for  the  prosecution.) 

The  judge  advocate  did  not  object  to  any  other  member.     (Or,  next 

objected  to .) 

Var.  3. — The  court,  being  reduced  below  the  legal  quorum,  informed  the 
convening  authority  to  that  effect,  copy  of  letter  appended,  marked  " —  — ," 
and  then  took  a  recess  until  2.30  p.  m.,  the  same  date,  when  it  reconvened. 

Present :  All  the  members  except  Lieutenant  J K.  L ,  U.  S.  Navy, 

the  judge  advocate,  the  accused  (counsel),  and  Lieutenant  R —      -  V.  S —    — , 
U.  S.  Navy,  appointed  a  member  by  the  convening  authority,  vice  Lieutenant 

J —      -  K.  L ,  U.  S.  Navy,  relieved.    The  order  so  modifying  the  precept 

is  prefixed,  marked  " ." 

277  to  282 

The  judge  advocate,  each  (remaining)  member,  and  the  stenog- 
rapher (clerk)  (interpreter)  were  duly  sworn. 

283  to  290 

The  accused  stated  that  he  had  received  a  copy  of  the  charges  and 
specifications  preferred  against  him  on  July  — ,  19 — . 

232  to  233 


346  PROCEDURE   FOR  COURTS  AND  BOARDS. 

'  Var.  1. — The  judge  advocate  read  a  letter  from  the  convening  author ity,  ap- 
pended, marked   " ,"  authorizing  and  directing  him  to  make  a  change 

(changes)  in  the  specifications,  and  stated  that  the  same  had  been  made  both 
in  the  original  and  in  the  copy  in  the  possession  of  the  accused. 

57 

Var.  2. — The  judge  advocate  read  a  letter  from  the  convening  authority, 

appended,  marked  " —    — ,"  directing  him  to  enter  a  nolle  prosequi  as  to  the 

—  specification  of  the charge,  and  a  nolle  prosequi  was  so  entered. 

60 

The  judge  advocate  asked  the  accused  if  he  had  any  objection  to 
make  to  the  charge  (s.)  and  specification (s). 

235 

• 

The  accused  replied  in  the  negative. 

Var.  1. — The  accused  replied  in  the  affirmative,  stating  that  in  the  specifica- 
tion (s)  he  is  charged  by  the  name  of  Henry  Johnson,  whereas  he  is  now  and 
from  earliest  childhood  has  been  known  by  the  name  of  Henry  Johnstone,  and 
this  he  is  ready  to  verify.  ( Or  as  the  case  may  be. ) 

Var.  2. — The  judge  advocate  called  attention  to  the  fact  that  (here  state  the 
defect). 

The  court  was  cleared. 

258 

The  court  was  opened.  All  parties  to  the  trial  entered,  and  the 
president  announced  that  the  court  found  the  charge  (s)  and  specifi- 
cation (s)  in  due  form  and  technically  correct. 

235 

Var.  1. the  president  announced  that  the  court,  having  found  the 

specifications  (or  as  the  case  may  be)  not  in  due  form,  had  sent  a  communica- 
tion to  the  convening  authority,  copy  appended,  marked  " —  — ,"  and  would 
await  a  reply.  The  court  then,  at  —  a.  m.,  took  a  recess  (adjourned)  until 
—  p.  m.,  the  same  date  (until  —  a.  m.,  to-morrow,  -  — ),  when  it  recon- 
vened. Present:  The  members  and  all  parties  to  the  trial. 

361 

The  charges  and  specifications  having  been  returned  to  the  court,  the  judge 
advocate  was  directed  to  correct  the  copy  in  the  hands  of  the  accused  to  cor- 
respond with  the  charges  and  specifications  just  received  from  the  convening 
authority  (with  the  charges  and  specifications  corrected  by  direction  of  the 
convening  authority,  copy  of  letter  appended,  marked  " " ) . 

The  judge  advocate  asked  the  accused  if  he  had  any  objection  to  make  to  the 
charges  and  specifications,  as  amended  (corrected). 

The  accused  replied  in  the  negative.     (Or  as  the  case  may  be.) 


PROCEDURE   FOR  COURTS  AND   BOARDS.  347 

The  court  was  cleared. 

The  court  was  opened.  All  parties  to  the  trial  entered,  and  the  president 
announced  that  the  court  found  the  charges  and  specifications  in  due  form  and 
technically  correct. 

Var.  2. — The  court  was  opened.  All  parties  to  the  trial  entered,  and  the  presi- 
dent announced  that  the  court  would  proceed  with  the  trial  on  the  charges  and 
specifications  as  originally  received,  copy  of  letter  from  the  convening  author- 
ity appended,  marked  " ." 

Var.  3. — The  court  was  opened.  All  parties  to  the  trial  entered,  and  the  presi- 
dent announced  that  the  objection  of  the  accused  was  overruled,  and  that  the 
court  found  the  charges  and  specifications  In  due  form  and  technically  correct. 

56 

The  accused  stated  that  he  was  ready  for  trial. 

Var. — The  judge  advocate  (accused)  requested  a  postponement  of  the  trial. 
(State  reason.) 

The  court  was  cleared.  The  court  was  opened,  and  all  parties  to  the  trial 
entered. 

The  court  then,  at  a.  m.,  adjourned  until  a.  m.,  to-morrow, 

Friday.  (Or,  The  court  was  opened.  All  parties  to  the  trial  entered,  and  the 
president  announced  that  the  court  had  decided  to  proceed  with  the  trial.) 

291 

' 

No  witnesses  not  otherwise  connected  with  the  trial  were  present. 

140 

Var.  1. — In  accordance  with  the  direction  of  the  court,  all  witnesses  not 
otherwise  connected  with  the  trial  withdrew. 

Var.  2.— The  court  summoned  all  the  witnesses  in  the  case  and  instructed 
them  not  to  converse  with  any  person,  other  than  parties  to  the  trial,  con- 
cerning any  feature  of  the  case  whatsoever  and  not  to  allow  any  witness  who 
has  testified  to  communicate  in  any  manner  anything  to  them  concerning  testi- 
mony given  on  the  stand. 

><b  "  Yff 

The  judge  advocate  read  the  letter  containing  the  charge  (s)  and 

specification  (s),  original  prefixed,  marked  " ,"  and  arraigned 

the  accused  as  follows : 

Q.  Lieutenant  X Y.  Z — ,  U.  S.  Navy,  you  have  heard 

the  charge  (s)  and  specification  (s)  of  charge  (s)  preferred  against 
you;  how  say  you  to  the  specification  of  the  (first)  charge,  guilty  or 


not  guilty? 

292  to  293 


A.  Not  guilty  (guilty)    (guilty  except  to  words  -      — ,  to  which 

1  *  1  j         \  /  rr^i  -i  -i  \ 

words  not  gmlty),     (The  accused  stood  mute.)  ^  ^ 


26450°-17— 23  gOE  ot  808 


348  PROCEDURE    FOR  COURTS  AND   BOARDS. 

Q.  To  the  first  specification  of  the  second  charge,  guilty  or  not 


A.  * 

Q.  To  the  second  specification  of  the  second  charge,  guilty  or  not 

guilty  ?  •• !'  dtiw 

^    #     *     * 

Q.  To  the  second  charge,  guilty  or  not  guilty  ? 

7    *     *     * 

301  to  310 

Var. — Before  pleading  to  the  issue  the, accused  (counsel)  made  a  motion  to 
strike  out  the  (first)  specification  of  the  (first)  charge  on  the  ground  that  said 
.specification  alleges  an  offense  committed  more  than  two  years  before  the 
issuing  of  the  order  for  trial,  and  the  accused  claims  the  benefit  of  the  provi- 
sions of  article  61,  A.  G.  N.  (Or,  state  the  grounds  of  such  motion,  as  the 
c.'ise  may  be,  and  how  much  of  the  charges  and  specifications  it  is  intended  to 
attack.)  In  support  of  his  motion  the  accused  desired  to  call  a  witness  to 
establish  that  he  did  not  come  within  the  exceptions  stated  in  article  tjl. 
A.  G.  N.  A  witness  in  behalf  of  the  accused  entered  and  was  duly  sworn. 
(Testimony  is  taken  in  the  manner  hereinafter  given  for  the  defense;  such  1cx- 
timony  may  be  rebutted  by  the  judge  advocate.}  (Or,  the  accused  stated  that 
he  had  no  evidence  to  introduce  in  support  of  his  motion. ) 

The  accused  (comnsel)  made  an  argument  in  support  of  his  motion,  a  brief 
of  which  is  appended,  marked  " ."  .,9If jo  ion  a9ag.jnJiw 

317 

The  judge  advocate  replied  (did  not  desire  to  reply) ;  (or,  requested  until 
—  p.  m.,  in  order  to  prepare  his  reply ;  the  court  took  a  recess  until  —  p.  m., 
at  which  time  it  reconvened.  Present:  The  members  and  all  parties  to  the 
trial.  The  judge  advocate  read  an  argument  in  reply  to  the  motion  of  the 
accused,  copy  appended,  marked  " .") 

The  court  was  cleared. 

The  court  was  opened,  and  all  parties  to  the  trial  entered.  The  president 
announced  that  the  court  overruled  the  motion  of  the  accused.  The  judge 
advocate  asked  the  accused  if  he  had  any  further  motion  to  offer.  (If  so, 
sa~me  as  before.)  The  accused  replied  in  the  negative  and  the  judge  advocate 
re-arraigned  the  accused  as  follows:  (Or,  the  president  announced  that  the 
court  decided  to  sustain  the  motion  of  the  accused.  The  president  thereupon 
addressed  a  communication  to  the  convening  authority,  copy  appended,  marked 

" ,"  transmitting  ao  extract  from  the  proceedings  of  the  court  relative  to 

the  motion.  Pending  a  reply  from  the  convening  authority,  the  court  then,  at 
-  p.  n,,  adjourned  until  10  a.  in.  to-morrow.) 

294  to  300 

(When  applicable  to  the  plea). — The  accused  was  duly  warned  as 
to  the  effect  of  his  plea. 

The  accused  persisted  in  his  plea  (or.  withdrew  his  plea  of  Guilty 
and  substituted  a  plea  of  Not  Guilty). 

306  to  308 


PROCEDURE  FOR  COURTS  AND  BOARDS.  349 

Far. —  (When  applicable  to  the  plea). — The  court  was  cleared.  The  court  was 
opened.  All  parties  to  the  trial  entered  and  the  president  announced  that  the 
court  decided  to  reject  the  plea  of  the  accused.  The  accused,  by  advice  of  the 
judge  advocate,  withdrew  his  former  plea  and  substituted  a  plea  of  Not 
Guilty.  (Or,  the  accused  declined  to  plead  as  advised  by  the  judge  advocate, 
who  was  thereupon  directed  by  the  court  to  proceed  as  though  a  plea  of  Not 
Guilty  had  been  entered.) 

310 

The  prosecution  began. 

Far. — The  prosecution  offered  no  evidence. 

205 

A  witness  for  the  prosecution  entered  and  was  duly  sworn. 

288 

Far. — A  member  (the  judge  advocate)  was  called  as  a  witness  for  the  prose- 
cution and  duly  sworn. 

139 

Examined  by  the  judge  advocate : 

141;  142 

1.  Q.  State  your  name,  rank  (rate),  and  present  station. 
A.  John  W.  Smith,  coxswain,  U.  S.  Navy,  stationed  on  the  U.  S.  S. 
Wyoming. 
Var.  (in  case  of  a  civilian  witness}  : 

1.  Q.  State  your  name,  residence,  and  occupation. 

2.  Q.  If  you  recognize  the  accused,  state  as  whom. 
A.  *     *     *. 

143 

- 

3    Q    *     *     * 

Far.— This  question  was  objected  to  by  the  accused    (a  member)   on  the 
ground  (state  reason). 
The  judge  advocate  replied. 

317 

The  court  was  cleared.  The  court  was  opened.  All  parties  to  the  trial 
entered,  and  the  president  announced  that  the  court  sustained  (did  not  sus- 
tain) the  objection. 

149;  150 

(//  objection  is  not  sustained)  : 

3.  Q.  *     *     *. 

A.  *     *     *.  0£ 

359;  360 


350  PROCEDURE   FOR  COURTS  AND  BOARDS. 

Cross-examined  by  the  accused  (counsel) : 

151 

^       Q       *         *         * 
A       *       *       * 

^*  •  T  T 

Reexammed  by  the  judge  advocate: 

152 

37.  Q.  *    *    * 

A.  * 

Recross-examined  by  the  accused  (counsel) : 

152 

45.  Q.  *    *    * 

A.  *    *    * 

Examined  by  the  court: 

153 

51.  Q.  *    *    * 

A.  *    *    * 

Var.  — 51.  Q.    By  a  member:     *     *     * 

This  question  was  objected  to  by  the  accused  (judge  advocate)  (member)  on 
the  ground  (state  reason}. 

The  court  was  cleared.  The  court1  was  opened.  All  parties  to  the  trial 
entered,  and  the  president  announced  that  the  court  sustained  (did  not  sustain) 
the  objection.  \  bflB 

(//  the.  objection  is  not  sustained,  the  question  then  becomes  a  question  by 
the  court). 

153 

53.  Q.  *     *     * 

' 

Var.— The  judge  advocate  (counsel  for  the  accused)  moved  to  strike  out  the 
answer  (words)  on  the  ground  (state  reason). 

The  court  was  cleared.  The  court  was  opened.  All  parties  to  the  trial  en- 
tered, and  the  president  announced  that  the  court  sustained  (did  not  sustain) 
the  motion. 

(In  case  the  court  sustains  the  motion:) 

The  court  directed  that  the  answer  (words)  be  stricken  out. 

149 

Neither  the  judge  advocate,  the  accused,  nor  the  court  desired  fur- 
ther  to  examine  this  witness. 

154 

The  witness  verified  his  testimony  (was  duly  warned),  and  with- 
drew. 

175;  177;  140 
098  ;C 


PROCEDURE.  FOR  COURTS  AND  BOARDS.  351 

Var.  1, —  -  verified  his  testimony  and  resumed  his  seat  as   (member) 

(judge  advocate)    (president). 

139 

Var.  2. —  —  corrected  his  testimony  as  follows :  Page  — ,  answer  to  ques- 
tion No.  — ,  the  words  "—  "  changed  to  "—  — ."  The 
testimony,  thus  amended,  was  read.  The  witness  pronounced  it  correct,  and 
withdrew. 

Var.  3. — At  the  request  of  the  judge  advocate  the  witness  was  directed  to 
report  to-morrow  at  —  o'clock,  — .  in.  (or,  later  in  the  trial,  when  recalled),  to 

correct  or  verify  his  testimony,  and  withdrew. 

. 

175;  176 

A  witness  for  the  prosecution  entered,  etc. 

The  court  then,  at  --  a.  m.,  took  a  recess  until  --p.  m.,  at  which 
time  it  reconvened. 

361 

Present:  All  the  members,  the  judge  advocate,  the  stenographer, 
the  accused,  and  his  counsel. 

— ,  the  witness  under  examination  when  the  recess  was  taken, 
entered.  He  was  warned  that  the  oath  previously  taken  was  still 
binding,  and  continued  his  testimony. 

96    O    *     *     * 

-f      .      \e±j. 

A.  *  (etc.,  as  before). 

The  court  then,  at  --p.  m.,  adjourned  until  --  a.  m.  to-morrow, 
Friday  (or,  if  Saturday,  until  —  a.  m.  Monday). 

Far.— The  judge  advocate  stated-  that  -  — ,  a  material  witness,  had 

not  appeared  and  requested  the  court  to  adjourn  until  to-morrow  morning.  The 
court  then,  at  —  p.  m.,  adjourned  until,  etc. 

291 

• 

SECOND    DAY.  :)f,r  ?,dT 

:10ll 

NAVY  YARD,  PHILADELPHIA,  PA., 

Friday,  July  17,  19—. 
The  court  met  at  10  a,  m. 

Present :  All  the  members,  the  judge  advocate,  the  stenographer, 
the  accused,  and  his  counsel. 

140 

r,/r.    ^.-Present:    (As    before),    except    Commander   D E.    F , 

U.    S.   Navy,   a   member ;   the  medical   certificate   accounting   for   his   absence 

was  read,  copy  appended,  marked  " ." 

. 

<(  no  " 

244  i 


352  PEOCEDURE  FOB  COURTS  AND  BOARDS. 

Var.  2.  —  Present:  (As  before),  except  Commander  D  -  E.  F  -  —  , 
U.  S.  Navy,  a  member.  The  judge  advocate  read  an  order  from  the  con- 
vening authority,  original  prefixed,  marked  "  —  —  ,"  relieving  Commander 
D  --  E.  F  —  —  ,  U.  S.  Navy,  and  appointing  Surgeon  M  -  L.  F  -  , 
U.  S.  Navy,  as  a  member  of  the  court. 

229:230 

The  accused  stated  that  he  did  not  object  to  this  member.  (Should  he  object, 
proceed  as  under  challenge.) 

Surgeon  M—      -  L.  F  —    —  ,  U.  S.  Navy,  was  duly  sworn. 

No  witnesses  not  otherwise  connected  with  the  trial  were  present. 

The  record  of  the  proceedings  of  yesterday  was  read  and  approved. 

Each  witness  who  had  been  examined  during  the  absence  of  Surgeon  - 
was  called  before  the  court,  informed  that  his  oath  previously  taken  was- 
still  binding,  heard  his  own  testimony  read,  and  Surgeon  -  not  desiring 
to  question  him,  he  pronounuced  his  testimony  correct  and  withdrew. 

(Should  Surgeon  —  -  wish  to  examine  the  witness,  or  should  any  of  the 
parties  to  the  trial  wish  to  question  him  on  any  correction  he  may  have  made  in 
his  testimony,  proceed  as  if  he  were  a  new  witness  about  to  be  examined,  and 

begin  numbering  of  questions  anew.) 

• 

247 


.  3.—  Present:  (As  before).    Lieutenant  J  -  K.  L  -  ,  U.  S.  Navy, 
who  was  absent  yesterday  when  the  court  was  organized  stated   (give  state- 
ment).    The  court  accepted  the  explanation  and  excused  Lieutenant  - 
from  further  attendance  in  the  case  now  pending. 

246 

Var.  4.  —  Present  :  The  members  and  all  parties  to  the  trial  except  the  judge 
advocate  ;  in  his  absence,  the  court  adjourned  until  —  a.  m.  to-morrow,  Satur- 
day. 

257 

Var.  5.  —  (In  case  of  promotion  of  member  or  judge  advocate  since  precept 
was  issued.) 

The  judge  advocate  read  a  communication,  copy  appended,  marked  "  —  —  ," 
from  the  Bureau  of  Navigation,  Navy  Department,  addressed  to  Lieutenant 
Commander  J  -  K.  L  -  ,  U.  S.  Navy,  transmitting  to  him  his  commis- 
sion as  a  lieutenant  commander  in  the  Navy. 

No  witnesses  not  otherwise  connected  with  the  trial  were  present. 

The  record  of  proceedings  of  yesterday  (the  first  day  of  the  trial) 
(Saturday)  was  read  and  approved. 

Var.  1.  —  The  record  of  proceedings  of  yesterday  was  read  and  objected  to  by 
the  accused  (a  member)  (the  court),  inasmuch  as.  (State  reason.)  The 
court  was  cleared.  The  court  was  opened.  All  parties  to  the  trial  entered, 
and  the  president  announced  that  the  court  sustained  (did  not  sustain)  the 
objection. 

(//  the  objection  is  sustained:) 

The  record  was  corrected  so  that  "  -  "  on  page  --  shall  read  "  -  ." 

With  this  correction,  the  record  was  approved. 


PROCEDURE  FOR  COURTS  AND  BOARDS.         "  353 

Var.  2. — The  judge  advocate  stated  that  the  record  of  proceedings  of  yes- 
terday, the  -  -  day  of  the  trial,  was  not  ready.  At  the  request  of  the 
judge  advocate,  the  court  then,  at  —  a.  m.,  took  a  recess  until  —  p.  m.,  at 
which  time  it  reconvened.  (Or,  the  court  decided  to  postpone  the  reading  of 
this  record  until  such  time  as  it  shall  be  reported  ready,  and  in  the  meantime 

to  proceed  with  the  trial.) 

;>fIT 

362 

Var.  3. —  ,  who  had  previously  testified,  was  called  before  the 

court,  informed  that  his  oath  previously  taken  was  still  binding,  and,  upon 
having  his  testimony  read  to  him,  stated  that  he  desired  to  make  the  follow- 
ing correction  in  his  testimony.  Page ,  answer  to  question  No.  -  — , 

line  No.  ,  strike  out  the  words  " "  and  insert  the  words  "• —  '.^  1>; 

With  this  correction,  he  pronounced  the  testimony  correct  and  withdrew. 

Var.  4. -,  who  had  previously  testified,  was  called  before  the 

court,  informed  that  his  oath  previously  taken  was  still  binding,  and  stated 
that  he  had  read  over  (Or,  had  had  read  over  to  him)  the  testimony  given 
by  him  on ,  the  —  —  day  of  the  trial,  pronounced  it  correct,  and  with- 
drew. (Or,  and  stated  that  he  desired  to  make  the  following  corrections,  etc.) 

J7g  ;IJ  'to  ^)  bsaimfj  oifi  lo 

iioj,  [ftoibam  srfo 

(When  a  maternal  correction  or  amendment  is  made.)  >iq 

The  witness,  at  the  request  of  the  accused  (counsel)    (judge  advocate),  re- 
sumed the  witness  stand,  and  was  informed  that  his  oath  previously  taken  was 
still  binding. 
Examined  by  the  accused  (counsel)  : 

neb 

175 

8  looiyfl.t 

A  witness  for  the  prosecution  entered  (etc.  as  before).  'HJr* 
Examined  by  the  judge  advocate : 

******* 
5.  Q.     *     *     * 

The  witness  declined  to  answer  on  the  ground  that  it  might  tend 
.    .  r ,          -,  x  i  .  +.'&  &-*£  .ttfT 

to  incriminate  (degrade)  him.  ^*i  ji  ;  r/r.o  I  .A 

159  to  160;  163  to  164. 

>  .1 
The  judge  advocate  requested  the  court  to  direct  the  witness  to 

answer.  (     ^ 

162 

The  court  was  cleared.  The  court  was  opened.  All  parties  to 
the  trial  entered,  and  the  president  announced  that  the  witness 
need  not  (must)  answer  the  question. 

165 
******* 


354  PKOCEDUBE   FOR  COURTS   AND   BOARDS. 

A  witness  for  the  prosecution  entered,  and  was  objected  to  by  the 
accused.    (Here  give  reason.) 

•|rtrt  A       -inn 

L66  to  Idb 

mi  •>  -i  i   •  T  {•    n  '}    0) 

The  witness  was  examined  on  his  voir  dire  as  follows : 
Examined  by  the  accused  (counsel) : 

137;  289 

. 
The  court  sustained  the  objection  and  the  witness  was  excused. 

(Or,  the  court  overruled  the  objection  and  the  witness  was  duly 
sworn  (etc.,  as  before.) 

133 


3.  Q.  If  you  are  the  legal  custodian  of  the  current  service  record 
of  the  accused  (or,  of  the  official  log  book  of  the  U.  S.  S.  -       — ;  or, 

the  medical  journal  of  the  U.  S.  Naval  Hospital  at ,  etc.). 

produce  it. 

The  witness  produced  the  current  service  record  of  the  accused, 
(or  other  document,  as  the  case  may  be),  and  it  was  submitted  to 
the  accused  and  the  court,  and  by  the  judge  advocate  offered  in  evi- 
dence. There  being  no  objection,  it  was  so  received. 

4.  Q.  Refer  to  that  record   (document)   and  read  such  portions 
thereof  as  relate  to  the  offense  for  which  the  accused  is  now  on  trial. 

The  witness  read  from  the  said  record  (or  other  document)  an  ex- 
tract (extracts),  copy  appended,  marked  "Exhibit  No.  — ." 

-  •:. 

186  to  203 

Var.  1.-3.  Q.  I  show  you  a  book;  can  you  identify  it? 

A.  I  can ;  it  is  the  official  log  book  of  the  U.  S.  S.  -     — ,  etc. 

Var.  2. — 3.  Q.  I  show  you  a  letter;  can  you  identify  it? 

A.  I  can. 

4.  Q.  In  whose  handwriting  is  it? 

A.  In  that  of . 

146  (c) 

Var.  3. — The  judge  advocate  produced  an  attested  copy  of  a  document  (letter) 
(order)  (or,  copy  under  seal  of  the  Navy  Department),  the  original  of  which, 
he  informed  the  Court,  could  not  be  produced,  as  it  was  lost  (part  of  a  perma- 
nent record)  (on  official  file,  etc.),  and  submitted  it  to  the  accused  and  the 
court,  and  offered  it  in  evidence,  etc. 

190 


PROCEDURE  FOR  COURTS  AND  BOARDS.  355 

The  prosecution  rested  (provided  the  prosecution  has  offered  evi- 
dence}. 

The  defense  began. 

205 

Far.— The  defense  offered  no  evidence. 

The  accused  was,  at  his  own  request,  duly  sworn  as  a  witness  in 
his  own  behalf. 

138;  161 
. 
Examined  by  the  judge  advocate: 

143 

1.  Q.  Are  you  the  accused  in  this  case? 
,A.  *     *     *. 
Examined  by  the  accused  (counsel). 


141 

20*     *     * 

*     * 

A.  :       ... 

Cross-examined  by  the  judge  advocate: 

J  .p  > 
151 

10.  Q.  *     *     *. 

A.  *     *     *. 

Keexamined  by  the  accused  (counsel). 

152 

17.  Q.  *     *    *. 

A.  *    *     *. 

Recross-examined  by  the  judge  advocate: 

152 


20.  Q.  *     *     *. 


A.  *     *     *. 

Examined  by  the  court  : 

153 

30.  Q.  *     *     *. 
A.  *     *     *. 

Neither  the  accused  (counsel)  nor  the  judge  advocate  desired  fur- 
ther to  examine  this  witness. 

154 

The  witness  verified  his  testimony,  and  then  resumed  his  status  as 
accused. 

175 

A  witness  for  the  defense  entered  (etc.,  as  before). 
Examined  by  the  judge  advocate: 

143 


356  PROCEDURE  FOR   COURTS  AND  BOARDS. 

1.  Q.  State  your  name,  rank  (rate),  and  present  station. 

A.  *     *     *. 

2.  Q.  As  whom  do  you  recognize  the  accused  ? 
^    *     *     * 

Examined  by  the  accused  (counsel) : 

3.  Q.  *    *    * 

The  witness  requested  permission  to  refresh  his  memory  from  a 
memorandum. 

The  request  of  the  witness  was  granted.  Having  been  allowed  to 
inspect  a  memorandum,  the  witness  was  asked  if  he  could  now 
testify  as  to  his  own  knowledge.  The  witness  replied  in  the  affirma- 
tive and  was  permitted  to  continue  with  his  testimony. 

Var.  — .  The  witness  stated  that  he  could  not  remember  the  facts,  but  that 
he  had  made  a  memorandum  at  the  time  of  the  occurrence  which  correctly 
set  forth  the  facts.  The  accused  (counsel)  requested  that  the  memorandum 
be  received  in  evidence,  and  submitted  same  to  the  judge  advocate  and,  the 
court. 

Examined  by  the  judge  advocate : 

4.  Q.  Under  what  circumstances  was  this  memorandum  made? 
A.     *     *     * 

5.  Q.  Can  you  testify  that  it  was  correct  when  made? 
A.     *     *     * 

There  being  no  objection,  the  memorandum  was  received  in  evidence,  copy 
appended,  marked  "  Exhibit  No.  — ,"  and  the  witness  read  same. 

145 

(In  case  of  improper  language  or  behavior  on  the  part  of  the  wit- 
ness.) The  president  cautioned  the  witness  as  to  his  language  (be- 
havior). 

171 
171 

The  witness,  having  persisted  in  the  use  of  improper  language  (or, 
as  the  case  may  be),  was  charged  with  contempt  and,  upon  being 
given  opportunity  to  reply,  replied  (give  reply). 


172 


The  court  was  cleared.  The  court  was  opened.  All  parties  to  the 
trial  entered,  and  the  president  announced  that  the  court  deemed  the 
witness,  E  -  -  E.  F  -  — ,  guilty  of  contempt  of  court  in  that 
he .  (Insert  the  occurrence  in  full.) 

The  court  informed  the  witness  that  he  was  at  liberty,  by  such 
proper  statement  as  he  might  desire  to  make,  to  show  cause  why  he 
should  not  be  punished  for  contempt. 


PROCEDURE  FOR  COURTS  AND  BOARDS.  357 

The  witness  stated: 

The  witness  was  placed  in  the  custody  of  the  provost  marshal, 
and  the  court  was  cleared.  The  court  was  opened.  All  parties  to 
the  trial  entered,  and  the  president  announced  that  the  court  had 
adjudged  the  witness  guilty  of  contempt  in  its  presence,  and  had 
sentenced  him,  E E.  F ,  to . 

Far. announced  that  the  witness  had  purged  himself  of  contempt. 

The  witness  continued  his  testimony: 

170;  172 

******* 

The  witness  verified  his  testimony  and  was  placed  in  the  custody 
of  the  provost  marshal,  who  was  directed  to  deliver  him  to  his  com- 
manding officer, ,  to  whom  a  communication,  copy 

appended,  marked  " ,"  was  addressed,  announcing  the  offense 

and  sentence. 

173 

Far.— (In  the  case  of  a  civilian  witness:) 

174 

22.  Q.  *     *     *. 

The  witness  refused  to  answer  this  question  (or,  to  produce  the  book,  paper, 
or  document  referred  to,  as  required  by  the  subpoena  duces  tecum  in  his  case). 

The  witness,  having  been  duly  tendered  (or,  paid)  his  fee  and  mileage,  was 
cautioned  by  the  president  that  his  refusal,  if  persisted  in,  would  make  him 
amenable  to  punishment  under  section  12  of  the  act  of  February  16,  1909 ; 
that  is,  a  fine  of  not  more  than  $500  or  imprisonment  not  to  exceed  six 
months,  or  both.  The  question  was  again  put  to  him. 

22.  Q.  *     *     *. 

The  witness  again  declined  to  answer  the  question  (or,  to  produce  the 
desired  book,  paper,  or  document  as  required  by  the  subpoena  duces  tecum  in 

his  case),  and  gave  as  the  reason  for  his  refusal  that  .  (Give  reason 

with  precision.) 

The  court  was  cleared.  The  court  was  opened.  All  parties  to  the  trial 
entered,  and  the  president  announced  that  the  facts  of  the  refusal  of  the  wit- 
ness to  testify  (or,  to  produce  the  book,  paper,  or  document,  etc.)  would,  by 
order  of  the  court,  be  certified  to  the  district  attorney  for  the  necessary  action 
in  the  premises,  as  required  by  law.  A  copy  of  the  said  certificate  is  appended, 
marked  " ." 

23.  Q.  *     *     *. 
A.  *     *     *. 

The  witness  was  directed  to  return  the  next  day  to  verify  his  testimony, 
and  was  permitted  to  withdraw. 

174;  Act  of  Feb.  16,  1909,  under  42  A.  G.  N. 

A  witness  for  the  defense  as  to  character  (or,  in  extenuation) 
entered  and  was  duly  sworn. 

125;  214 


358  PROCEDURE  FOR  COURTS  AND  BOARDS. 

(Record  testimony  as  previously  indicated.) 

*      v.j  HA* 

Z B— ,  a  witness  for  the  defense,  was  recalled  and 

warned  that  the  oath  previously  taken  by  him  was  still  binding. 
(Record  testimony  as  previously  indicated.) 

. 
******        Y       * 

3.  Q.  If  you  are  the  legal  custodian  of  the  current  service  record 
of  the  accused,  produce  it. 

The  witness  produced  the  current  service  record  of  the  accused, 
and  it  was  submitted  to  the  judge  advocate  and  the  court  and  by  the 
accused  offered  in  evidence.  There  being  no  objection,  it  was  so 
received. 

4.  Q.  Eefer  to  that  document  and  read  such  portions  thereof  as 
relate  to  the  previous  record  of  the  accused. 

The  witness  read  from  the  said  record  an  extract  (extracts),  copy 
appended,  marked  "  Exhibit  No.  — ." 

214;  187;  195 

•i  IT 
*  *  *    .  *  *  *  * 

• 

The  defense  rested  (provided  the  defense  has  offered  evidence). 

:  (.'OC  . 

.miff  oj  ji/q    •  ^flT    .ti: 


The  rebuttal  began  (in  case  there  be  a  rebuttal). 

. jmf}    Jf;*! 

206 

. 

******* 

The  rebuttal  ended. 

The  surrebuttal  began  (in  case  there  be  a  surrebuttal). 

207 

Var— The  accused  did  not  desire  to  offer  any  evidence  in  surrebuttal. 

******* 
.  W.  .£/  .A  oJr  j^JDiriJ  fv>Ut?l  .ol   .091  TO  JOn.  ,'y^l 

The  surrebuttal  ended. 

The  court  then,  at  —  p.  m.,  adjourned  until  —  a.  HI.  to-morrow. 
Saturday. 


PROCEDURE    FOR   COURTS   AND   BOARDS.  359 

THIKD  DAY. 

NAVY  YARD,  PHILADELPHIA  PA., 

Saturday,  July  18,  19 — . 
The  court  met  at  —  a.  m. 
Present:  (As  before) 

The  record  of  proceedings  of  yesterday  was  read  and  approved. 
The  court  desired  further  testimony,  and  directed  the  recall  of 
_  _ (OP}  that : be  called). 

128 


The  accused  read  his  written  defense,  copy  appended,  marked 
"  Exhibit  No.  — ." 

Var.  1. — The  accused  requested  a  delay  until  to  prepare  his  written 

statement  (argument).  The  request  was  granted,  and  the  court  then,  at 
—  p.  m.,  adjourned  to  meet  to-morrow, ,  at  —  a.  m. 

Var.  2. — The  accused  did  not  desire  to  make  a  statement,  and  submitted  his 
case  to  the  court. 

Var.  8.— The  counsel  for  the  accused  made  the  following  argument : 

Var.  4- — The  court  was  cleared.  The  court  was  opened  and  the  president 
announced  that  the  court  considered  the  statement  of  the  accused  to  be  incon- 
sistent with  his  plea  of  guilty.  The  conflicting  plea  and  statement  were 
brought  to  the  attention  of  the  accused. 

The  accused  adhered  to  the  facts  set  forth  in  his  statement. 

The  court  directed  the  judge  advocate  to  proceed  as  if  the  plea  of  not  guilty 
to  the specification  of  the charge  had  been  entered. 

The  court  was  cleared.  The  court  was  opened.  All  parties  to  the  trial 
entered,  and  the  president  announced  that  the  court  had  decided  to  allow  the 
introduction  of  further  evidence.  £$>£, 

311  to  316 

The  judge  advocate  read  his  reply,  appended,  marked  "Exhibit 
j^o » 

Var.  1. — The  judge  advocate  made  th$  following  argument : 

Var.  2. — The  judge  advocate  requested  a  delay  until to  prepare  his 

written  reply   ( argument ) .     The  request  was  granted,  and  the  court  then,  at 

—  p.  m.,  adjourned  to  meet  to-morrow, ,  at  —  a.  m. 

• 

313  to  316 

rni        i    •    -i  /?     •   i      i 

The  trial  was  finished. 

(In  case  the  court,  for  satisfactory  cause,  decides  to  allow  the 
prosecution  or  the  defense  to  introduce  further  evidence:} 

The  court  was  cleared.  The  court  was  opened.  All  parties  to  the 
trial  entered,  and  the  president  announced  that  the  court  had  decided 
to  allow  the  prosecution  (defense)  to  introduce  further  evidence. 

205 


360  PROCEDURE   FOR  COURTS  AND  BOARDS. 

T( 

X N ,  a  witness  for  the  prosecution  (defense),  was 

recalled  and  warned  that  the  oath  previously^taken  by  him  was 
still  binding. 

{Record  testimony  as  previously  indicated.} 

The  court  was  cleared. 

The  judge  advocate  was  recalled  (informed  that  the  court  had  met 
from  day  to  day),  and  directed  to  record  the  following  findings: 

"  The  specification  of  the  first  charge, '  proved.' 

"And  that  the  accused,  Lieutenant  X—  -  Y.  Z ,  U.  S. 

Navy,  is  of  the  first  charge, 4  guilty.' 

"The  first  specification  of  the  second  charge,  'proved  in  part, 

proved  except  the  words  " ,"  which  words  are  not 

proved.' 

"The  second  specification  of  the  second  charge,  'proved  in  part, 

proved  except  the  words  " ,"  which  words  are  not 

proved,  and  for  which  the  court  substitutes  the  words  " 

,"  which  words  are  proved.' 

"And  that  the  accused,  Lieutenant  X Y.  Z—  — ,  U.  S. 

Navy,  is  of  the  second,  '  guilty  in  a  less  degree  than  charged,  guilty 
of- .' 

"  The  specification  of  the  third  charge, '  not  proved.' 

"And  that  the  accused,  Lieutenant  X Y.  Z -,  U.  S. 

Navy,  is,  of  the  third  charge, '  not  guilty ' ;  and  the  court  does,  there- 
fore, acquit  (fully  acquit)  (honorably  acquit)  (most  fully  and 
honorably  acquit)  the  said  Lieutenant  X Y.  Z ,  U.  S. 

Navy,  of  the  third  charge." 
oJ  J)9bto9b  hi 

318  to  325 

The  judge  advocate  stated  that  he  had  (no)  record  of  previous 
conviction(s)  (that  the  rate  of  pay  of  the  accused  (if  an  enlisted 
man)  is  $ a  month  and  that  he  had  enlisted  on ) . 

326 

. 

(In  ease  there  be  record  of  previous  conviction) : 

The  court  was  opened  and  all  parties  to  the  trial  entered.  The 
president  announced  that  the  court  was  ready  to  receive  the  record  of 
previous  conviction. 

There  being  no  objection,  the  judge  advocate  read  from  the  (cur- 
rent) service  record  of (the  accused,  while  serving  under  the 

name  of )  an  extract  showing  previous  conviction  (s)  copy  ap- 
pended, marked  "  Exhibit  No.  — ." 

Var.  1. — The  accused  (court)  objected  to  the  introduction  of  the  record  of  his 
trial  by  summary  court-martial  on  March  4,  1914,  on  the  ground  that  the  record 
had  not  been  approved  by  the  convening  authority. 


PROCEDURE  FOR  COURTS  AND  BOARDS.  361 

The  court. was  cleared.  The  court  was  opened.  All  parties  to  the  trial  en- 
tered, and  the  president  announced  that  the  court  sustained  (did  not  sustain) 
the  objection. 

Var.  2. — There  being  no  objection,  the  judge  advocate  presented  to  the  court 

general  court  martial  order  No.  — ,  dated  ,  1914,   in  the  case  of  the 

accused. 

326  to  334 

The  court  was  cleared  (for  the  purpose  of  deliberating  on  the 
sentence). 

335;  336 

rri         •      i  i         •  j.  n     T  -i     v         .      i    . 

Ihe  judge  advocate  was  recalled,  and  directed  to  record  the  sen- 
tence of  the  court  as  follows : 

354;  355 

"The    court,    therefore,    sentences    him,    Lieutenant    X Y. 

:,  U.  S.  Navy,  to  be  dismissed  from  the  United  States  naval 

A: B.  C -, 

Captain,  U.' 8.  Navy,  President. 
j) j£    p 

Commander,  U.  S.  Navy,  Member. 

7  J  ' 

G -H.  I , 

Captain,  U.  S.  Marine  Corps,  Member. 
J-      -K.  L— , 

Lieutenant,  U.  S.  Navy,  Member. 

-*jr         ^-r       ft 

1V1— 7  IN .    U  , 

Lieutenant,  U.  S.  Navy,  Member. 

First  Lieutenant,  U .  S.  Marine  Corps,  Member. 

S—     — T.  U-     -, 
Lieutenant  (j.  g.)  U.  S.  Navy,  Member. 

V V.  W , 

First  Lieutenant,  U.  S.  Marine  Corps,  Judge  Advocate. 

356 

Var.  1. to  be  shot  to  death  by  musketry   (hanged  by  the 

neck  until  dead),  two-thirds  of  the  members  concurring. 

337;  354 

Var.  2. to  be  dismissed  from  the  United  States  naval  service 

and  to  be  imprisoned  in  swch  prison  or  penitentiary  as  the  convening  authority 
may  designate  for  a  period  of  two  (2)  years. 

338;  339 

Var.  3. to  lose  one  (1)  year,  nine  (9)  months'  seniority  in 

the  date  of  his  warrant  as  machinist ;  to  lose  corresponding  rank  in  the  list  of 


362  PROCEDURE   FOR  COURTS  AND  BOARDS. 

machinists  of  the  Navy;  and  to  lose  during  a  period  of  one  (1)  year  the 
difference  between  his  present  rate  of  pay  and  the  next  lower  rate  of  graded 
pay  as  machinist. 

340;  343 

Var.  4- to  be  restricted  to  his  ship  or  station  for  a  period 

of  three  (3)  months,  and  to  lose  fifty  dollars  ($50)  per  month. of  his  pay  for 
a  period  of  ten  (10)  months. 

341 

. 

Var.  5. —  -  to  lose  fifty  (50)  numbers  in  his  grade  (to  be  placed 

at  the  foot  of  the  —  — 's  list  of  present  date  and  to  there  remain  until  he 
shall  have  lost  fifty  (50)  numbers  in  his  grade.) 

• 

342 

Var.  6. to  be  dismissed  from  the  United  States  Marine  Corps 

and  from  the  United  States  naval  service. 

OOQ 

338 

Var.  7. — The  court  therefore  sentences   him  ,   United   States 

(to  be  reduced  to  the  rating  (rank)   of  ),  to  be  confined  for  a 


period  of ,  (then  to  be  dishonorably  discharged  from  the  United  States 

naval  service,  or  to  be  discharged  from  the  United  States  naval  service  with 
a  bad  conduct  discharge),  and  to  suffer  all  the  other  accessories  of  said  sen- 
tence, as  prescribed  by  section  349,  Naval  Courts  and  Boards. 

346;  348;  349 

Var.  8. — The  court,  therefore,  sentences  him, ,  seaman,  United 

States  Navy  (to  lose  pay  amounting  to  one  hundred  and  forty-five  (145)  dollars 
and  twenty  (20)  cents,  and)  to  be  dishonorably  discharged  from  the  United 
States  naval  service. 

350        ' 

Var.  9. — For  summary  court  punishments  see  p.  396. 


347 


. 

In  consideration  of  his  previous  good  record  (or,  whatever  the 
reason  may  be  upon  which  the  recommendation  is  based),  we  recom- 
mend -  — ,  ,  U.  S.  Navy,  to  the  clemency  of  the 

reviewing  authority. 

357 

A B.  C-    — , 

Captain,  U.  S.  Navy,  President. 

G H.  I , 

Captain,  U.  S.  Marine  Corps,  Member. 

S -  T.  U-     — . 

Lieutenant  (j.  g.)   U.  S.  Navy,  Member. 


PROCEDURE  FOR  COURTS  AND  BOARDS.  363 


The  court  was  opened  and  proceeded  with  the  trial  of 

UQ     
.  o. . 

. 


T£     P 


Captain,  U.  S.  Navy,  President, 

V V.  W , 

First  Lieutenant,  U.  S.  Marine  Corps,  Judge  Advocate. 

Var.  1. — The  court  then,  at  —  p.  m.,  adjourned  to  meet  to-morrow,  , 

(on  Monday  next),  at  —  o'clock  a.  m.     (Signed  as  above.) 

Var.  2. — The  court,  having  no  more  cases  before  it,  adjourned  to  await  the 
action  of. the  reviewing  authority.     (Signed  as  above.) 

Var.  3. — The  court  adjourned  to  await  the  call  of  the  president.     (Signed  as 
above.) 

365 
Case  of 

LIEUTENANT  X Y.  Z -, 

U.  S.  Navy, 
July  29, 19—. 

85 

' 

RECCED  CF  PROCEEDINGS  IN  REVISION 

. 

. 

• 

GENERAL  COURT  MARTIAL 

. 

CONVENED  AT 

THE  NAVY  YARD,  PHILADELPHIA,  PA., 

• 

BY  ORDER  OF 

I 

THE  SECRETARY  OF  THE  NAVY. 

376 

Copy  furnished. 
Far.— Copy  waived. 

379 

i  ..m  .  i; 
FOBMS  OF  LETTEES  RETUBNING  RECORD  TO  COURT  FOB  REVISION. 

. 

NAVY  DEPARTMENT,  ,y 

Washington,  July  — ,  19—. 

From  :  The  Secretary  of  the  Navy. 

To:   Captain  A B,.  C —        — ,  U.  S.  Navy,  president,  general  court-mar- 
tial, navy  yard,  Philadelphia,  PafcTS  ;  8' 

Subject :  Trial  of  Lieutenant  X—      -  Y.  Z ,  U.  S.  Nayy. 

Inclosure:  1. 

1.  The  record  of  proceedings  of  the  general  court-martial  of  which  you  are 

president  in  the  case  of  Lieutenant  X Y.  Z is  returned  herewith 

to  the  court. 

26450°— 17 24 


364  PROCEDURE   FOR  COJJRTS  AND  BOARDS. 

2.  The  department,  after  careful  consideration,  is  of  the  opinion  that  the 
sentence  adjudged  by  the  court  is  not  adequate  to  the  offense  found  proved. 
In  this  connection,  the  attention  of  the  court  is  called  to  C.  M.  O.  — ,  19 — , 
and  — ,  19 — ,  respectively. 

3.  The  court  will  reconvene  for  the  purpose  of  reconsidering  its  sentence. 

4.  Upon  the  conclusion  of  such  proceedings,  the  record  will  be  returned  to 
the  Judge  Advocate  General. 

372;  384 

U.  S.  S.  "TEXAS," 
Hampton  Roads,  Va.,  July  — ,  19 — . 
From:  Commander  in  Chief,  U.  S.  Atlantic  Fleet. 

To:  Captain    A B.    C ,    U.    S.    Navy,    president,    general    court- 
martial,  U.  S.  S.  Texas. 

Subject :  Trial  of ,  seaman,  U.  S.  Navy. 

Inclosure :  1. 

1.  The  record  of  proceedings  of  the  general  court-martial  of  which  you  are 
president  in  the  case  of ,  seaman,  U.  S.  Navy,  is  herewith  re- 
turned to  the  court. 

2.  The  convening  authority,  after  careful  consideration,  does  not  consider  that 
the  finding  is  in  accord  with  the  evidence  which  was  brought  before  the  court, 
in  that  the  accused  did,  by  his  plea,  admit  his  absence  from  the  naval  service 
between  the  dates  specified,  a  period  of  one  year  and  two  months,  and  failed 
to  bring  any  evidence  to  show  that  it  was  impossible  to  return  to  his  duty  or 
that  he  had  endeavored  in  any  way  to  communicate  with  the  naval  authorities. 

3.  The  prosecution  brought  evidence  to  show  that  the  accused  was  in  civilian 
clothes  when  he  surrendered  on  board  the  New  York.    The  accused  made  no 
explanation  whatever  of  his  prolonged  absence  from  his  station  and  duty,  and 
this  fact  furnishes  a  presumption  of  the  intent  necessary  to  prove  desertion,  as 
does  also  the  fact  that  the  accused  had  some  time  during  his  long  absence,  to 
which  he  pleaded  guilty,  disposed  of  his  uniform,  and  was  -obliged  to  surrender 
himself,  when  he  did  surrender,  dressed  in  civilian  clothes. 

4.  The  court  will  reconvene  for  the  purpose  of  reconsidering  the  finding  and 
sentence.    At  the  conclusion  of  the  proceedings  in  revision,  the  record  will  be 
returned  to  the  convening  authority. 

372;  384 

NAVY  YARD,  PHILADELPHIA,  PA., 

Thursday,  July  — ,  19 — . 

The  court  reconvened  at  10  a.  m.,  pursuant  to  an  order  hereto  pre- 
fixed, marked  "A,"  which  was  read  by  the  judge  advocate. 
Present:  (Here  insert  the  names.) 

Absent:  (Here  insert  the  names,  with  reason  for  absence  in  each 
case. )  •  a 

373;  374 

(When  applicable. — The  court  having  decided  that  the  presence  of 
accused  was  necessary  to  the  ends  of  justice,  the  accused  (with  coun- 
sel) was  called  before  the  court  and  the  convening  order  was  reread). 

378 


PROCEDURE  FOR  COURTS  AND  BOARDS.  365 

The  court  was  cleared. 

380 

The  judge  advocate  was  recalled  and  directed  to  record  that  the 
court  decided  to  revoke  its  former  finding  (sentence)  in  the  case  of 
Lieutenant  X Y.  Z—  — ,  U.  S.  Navy,  and  to  substitute  there- 
for the  following  finding  (sentence) :  —  — . 

381 

(Signed  by  all  the  members  present  and  the  judge  advocate.) 

376 

Var.  1. —  -  and  to  substitute  therefor  the  following  finding:  "The 

specification  proved  in  part,  proved  except,  etc.  The  court  respectfully  ad- 
heres to  its  former  sentence." 

Var.  2. —  " decided  respectfully  to  adhere  to  its  former  finding  (find- 
ing and  sentence)  (sentence)." 

381 

Var.  3. —  " decided  to  correct  the  following  clerical  errors: 

(a)  On  page  ,  by  inserting  between  lines  10  and  11,  the  following: 


(6)   On  page  9,  by  omitting  from  lines  16  and  17  the  following:  " 


(c)  On  page  20,  by  omitting  the  words  "  -  ,"  lines  5  to  9,  inclusive,  and 
substituting  therefor  the  words  "  -  ." 

377 

The  court  then  took  up  the  next  case. 

Var.  1.  --  —  adjourned  to  await  the  action  of  the  reviewing  authority. 
Var.  2.  —  -  then,  at  -  —  p.  m.,  adjourned  to  meet  tomorrow  (on  Monday 

next)  at  —  o'clock  a.  m. 

Var.  3.  —  -  proceeded  with  the  triai  of  -  —  . 

(Signed  by  the  president  and  judge  advocate.) 

376 


(Action  of  convening  authority  on  the  record.) 

U.  S.  S. 
OFF 


,  , 

July  -  ,  19  —  . 

The  proceedings,  finding  (s),  and  sentence  of  the  general  court- 
martial  in  the  foregoing  case  of  Lieut.  X  -  Y.  Z  -  ,  U.  S. 


366  PROCEDURE   FOR  COURTS  AND  BOARDS. 

Navy,  are  approved.  He  will  be  released  from  arrest  and  restored 
to  duty. 

M-       -  L.  M , 

Admiral,  U.  S.  Navy, 

Commander  in  Chief,  Z7.  S.  Atlantic  Fleet. 
Or,  Rear  Admiral,  U.  jS.  Navy^ 

Commander,  Cruiser  Force, 

U.  S.  Atlantic  Fleet. 
Or,  Rear  Admiral,  U.  S.  Navy,  Commandant, 

Commanding  U.  S.  Naval  Station, 

Olongapo,  P.  I. 
382 

Var.  1. — The  proceedings  of  the  general  court-martial  in  the  foregoing  case 

of  Lieutenant  X Y.  Z- ,  U.   S.  Navy,  are  approved ;  the  findings 

and  the  sentence  are  disapproved  for  the  following  reasons  (state  reasons) ;  he 
will  be  released  from  arrest  and  restored  to  duty. 

384;  385 

Var.  2. — The  proceedings  of  the  general  court-martial  in  the  foregoing  case 

of  Lieutenant  X —  -  Y.  Z ,  U.  S.  Navy,  are  approved ;  the  findings  on 

the  first  and  second  specifications  of  the  first  charge  and  on  the  first  charge 
are  disapproved;  and  the  findings  on  the  second  and  third  charges  and  the 
specifications  thereunder  and  the  sentence,  are  approved.  He  will  be  released 
from  arrest  and  restored  to  duty. 

Var.  3. — The  proceedings,  findings,  and  sentence  of  the  general  court-mar- 
tial in  the  foregoing  case  of  -  —  are  approved,  and  the  naval  prison 

at  the  navy  yard,  ,  ,  is  designated  as  the  place  for  the  execution 

of  so  much  of  the  sentence  as  relates  to  confinement. 

Var.  4' — The  proceedings,  findings,  and  sentence  of  the  general  court-martial 

in  the  foregoing  case  of are  approved.  The  U.  S.  S.  -  -  is 

designated  as  the  place  of  confinement  until  an  opportunity  offers  for  trans- 
fering  him  to  the  naval  prison,  Portsmouth,  N.  H.,  or  such  other  prison  as 
may  be  designated,  for  the  unexpired  portion  of  his  sentence. 

*388 

. 

Var.  5. — The  proceedings,  findings,  and  sentence  of  the  general  court-mar- 
tial in  the  foregoing  case  of  -  —  are  approved. 

In  view,  however,  of  the  unanimous  recommendation  to  clemency,  the 

is  reduced  to . 

384 

Var.  6. — The  proceedings,  findings,  and  acquittal  of  the  general  court-mar- 
tial in  the  foregoing  case  of  -  —  are  approved,  and  he  will  be  released 
from  confinement  (arrest)  and  restored  to  duty. 

Var.  7. — The  proceedings,  findings,  and  sentence  of  the  general  court-martial 
in  the  foregoing  case  of  Lieutenant  X- Y.  Z —  — ,  U.  S.  Navy,  are  ap- 
proved, and,  in  conformity  with  article  53  of  the  Articles  for  the  Government 
of  the  Navy,  the  record  is  respectfully  referred  to  the  Secretary  of  the  Navy 
for  transmission  to  the  President. 

383 


PROCEDURE  FOR  COURTS  AND  BOARDS.  367 

.  8. — The  proceedings,  findings,  and  sentence  of  the  general  court-mar- 
tial in  the  foregoing  case  of  are  approved;   but  that  portion 

of  the  sentence  which  involves  confinement  is  remitted.  The  dishonorable 
(bad  conduct)  discharge  is  remitted  on  condition  that  —  —  during  a  period 
of  conducts  himself  in  such  a  manner  as  in  the  opinion  of  his  com- 
manding officer  warrants  his  further  retention  in  the  service;  otherwise  he 
is  to  be  dishonorably  discharged  at  the  discretion  of  his  commanding  officer  at 
any  time  during  said  period;  the  loss  of  pay  (and  allowances)  is  reduced  to 

the  loss  of less  the  amount  of  his  indebtedness  to  the  United  States  on 

the  date  of  the  approval  of  this  sentence,  and  the  loss  of  pay  (and  allow- 
ances) as  -thus  reduced  is  remitted  subject  to  the  conditions  specified  in  article 

1-4893,  Naval  Instructions,  1913.     ( will  be  required  to  serve  under  his 

fraudulent  enlistment.) 

384 

LETTER    EMPOWERING    CERTAIN    OFFICERS    TO    ORDER    GENERAL    COURTS-MARTIAL. 

(See  Act  of  Aug.  29,  1916,  quoted  under  art.  38,  A.  G.  N.f  p.  39.) 

r^M         ^T 

File  No.  — . 

NAVY  DEPARTMENT, 

Washington,  October  • — ,  19 — . 
i 
In  accordance  with  the  authority  vested  in  me  by  law,  I  hereby  empower 

the  commander,  battleship  force,  U.  S.  Atlantic  Fleet,  to  convene  general 
courts-martial  (or,  the  commanding  officer,  first  brigade,  U.  S.  Marine  Corps, 
to  convene  general  courts-martial  while  such  brigade  is  serving  on  shore  be- 
yond the  continental  limits  of  the  United  States)  (or,  the  commandant  of  the 
navy  yard,  Norfolk,  Virginia,  to  convene  general  courts-marital  during  the 
continuance  of  the  present  war  between  the  United  States  and .) 

Secretary  of  the  Navy. 

The  power  thus  conferred  may  be  restricted  by  accompanying  instructions 
limiting  the  exercise  of  this  power  to  occasions  when  such  officer  is  not  in 
company  with  a  superior.  Precepts  for  general  courts-martial  (and  courts  of 
inquiry,  see  act  of  August  29,  1916,  quoted  under  article  55,  A.  G.  N.)  con- 
vened in  accordance  with  the  above  authorisation  should  contain  a  reference 
to  same,  thus: 

Pursuant  to  the  authority  vested  in  me  by  the  Secretary  of  the  Navy  (de- 
partment's file  No. ,  dated  October  — ,  19 — ),  a  general  court-martial 

is  hereby  ordered  to  convene,  etc. 

_ 

LETTER  ACCOMPANYING  A  NEW  PERCEPT  FOR  A  PERMANENT  COURT. 

NAVY  DEPARTMENT, 
Washington,  July  — ,  19 — . 
From :  The  Secretary  of  the  Navy. 
To :  Captain  A B.  C ,  U.  S.  Navy,  navy  yard,  Philadelphia,  Pa.,  via 

Commandant. 
Subject :  Authorizing  general  court  martial  to  take  up  cases  pending  before 

court  convened  by  precept  of  January  — ,  19 — . 

1.  The  general  court  martial  of  which  you  are  president,  appointed  by  the 
department's  precept  of  this  date,  to  convene  at  the  navy  yard,  Philadelphia, 
Pa.,  is  hereby  authorized  and  directed  to  take  up  such  cases,  if  any,  as  may  be 


368 


PROCEDURE  FOR  COURTS  AND  BOARDS. 


pending  on  that  date  before  the  general  court-inartial  appointed  by  the  depart- 
ment's precept  of  January  — ,  19 — ,  of  which  you  are  president,  except  such 
cases  the  trial  of  which  may  have  been  commenced. 

2.  A  copy  of  this  letter  will  be  attached  to  all  cases  referred  to  the  court 
prior  to  the  date  of  the  precept  transmitted  herewith. 

(To  be  read  by  the  judge  advocate  and  prefixed  to  the  record  in  all  cases 
where  applicable.) 

LETTER   FROM    CONVENING   AUTHORITY    MAKING    CHANGE    IN    COMPOSITION    OF    COURT. 


NAVY  DEPARTMENT, 
Washington,  July  — ,  19 — . 


From :  The  Secretary  of  the  Navy. 


To :  Captain  A- 


-,  U.  S.  Navy,  president,  general  court-martial, 


U.  S.  Navy,  as  mem- 
-,  U.  S.  Navy,  hereby 


navy  yard,  Philadelphia,  Pa.,  via  Commandant. 
Subject :  Appointment  of  Lieutenant  F S.  A — 

ber  of  court  in  place  of  Lieutenant  M N.  O- 

relieved. 

1.  Lieutenant  F S.  A ,  U.  S.  Navy,  is  hereby  appointed  a  member 

(judge  advocate)  of  the  general  court-martial,  of  which  you  are  president,  at 

the  navy  yard,  Philadelphia,  Pa.,  in  place  of  Lieutenant  M N.  O , 

U.  S.  Navy,  hereby  relieved  from  that  duty. 


225;  230 


LETTER  TRANSMITTING  COPY  OF  CHARGE  AND  SPECIFICATION  TO  COMMANDING  OFFICEB 
UNDEB  WHOM  THE  ACCUSED  IS  SERVING. 

DEPARTMENT  OF  THE  NAVY, 
OFFICE  OF  THE  JUDGE  ADVOCATE  GENERAL, 

Washington,  July  — ,  19 — . 

From :  Judge  Advocate  General. 

To :  Commanding  Officer,  U.  S.  S.  Texas,  navy  yard,  Philadelphia,  Pa. 

Subject :  Trial  of  C J.  S ,  seaman,  U.  S.  Navy,  by  the  general  court- 
martial  of  which  the  president  is . 

Inclosure:  1. 
There  is  transmitted  herewith  certified  copy  of  charge    ,  with  specification    , 

for  delivery  to  the  accused  in  this  case,  with  notice  that  he  will  be  tried 

before  the  above-mentioned  general  court-martial. 

The  judge  advocate  of  the  court  has  been  directed!  to.  summon  such  witnesses 

as  may  be  required  for  the  defense. 

By  direction  of  the  Secretary  of  the  Navy. 
(Not  appended  to  record.) 

232 


PROCEDURE  FOR  COURTS  AND  BOARDS.  369 

LETTER  TO  COMMANDING  OFFICER,  INCLOSING  CHARGES  AND  SPECIFICATIONS  AND 
PLACING  OFFICER  UNDER  ARREST. 

NAVY  DEPARTMENT, 
Washington,  July  — ,  19 — . 
From :  The  Secretary  of  the  Navy. 
To :  Commanding  officer,  U.  S.  S.  Texas. 

Subject:   Trial  by  general  court-martial  of  Lieutenant  X Y.   Z , 

U.  S.  Navy. 
Inclosures:  2. 
1.  You  will  deliver  the  inclosed  copy  of  charges  and  specifications  to  Lieutenant 

X Y.  Z ,  place  him  under  arrest  in  conformity,  with  article  44  of 

the  Articles  for  the  Government  of  the  Navy,  and  direct  him  to  report  to 

Captain  A B.  C at  the  time  designated  for  his  trial  before  the 

general  court-martial  of  which  that  officer  is  president. 

41;  42 


LETTER     TO     COMMANDANT     OF     NAVY     YARD     (COMMANDING     OFFICER     OF     VESSEL) 
DIRECTING  HIM  TO  FUENISH  CLERICAL  ASSISTANCE. 

NAVY  DEPARTMENT, 
Washington,  July  — ,  19 — . 
From :  The  Secretary  of  the  Navy. 
To  :  Commandant,  navy  yard,  Philadelphia,  Pa. 
Subject :  General  court-martial ;  detail  of  clerical  assistance. 

1.  A  general  court-martial,  of  which  Captain  A B.  C ,  is  presi- 
dent, has  been  ordered  to  convene  at  the  navy  yard,  Philadelphia,  Pa.,  at  10 
o'clock  a.  m.,  on  July  — ,  19 — . 

2.  You  will  detail  from  among  the  civil  employes  or  enlisted  force  under 
your  command  such  clerical  assistance  as  may  be  required  by  the  judge  advo- 
cate in  recording  the  proceedings  of  the  court. 

(Not  appended  to  record). 

270 


LETTER   TO   JUDGE  ADVOCATE   AUTHORIZING   THE   EMPLOYMENT   OF   A    STENOGRAPHER. 

NAVY  DEPARTMENT, 
Washington,  July  — ,  19 — . 
From :  The  Secretary  of  the  Navy. 
To :  First  Lieutenant  V V.  W ,  U.  S.  Marine  Corps,  judge  advocate, 

general  court  martial,  navy  yard,  Philadelphia,  Pa. 
Subject :  Authorizing  employment  of  a  stenographer  for  general  court  martial. 

1.  You  are  hereby  authorized  and  directed  to  employ  at  the  best  obtainable 
rates,  not  to  exceed  the  customary  market  rates,  to  be  agreed  upon  in  writing 
before  any  services  are  rendered,  such  stenographic  assistance  as  may  in  your 
judgment  be  requisite  and  proper,  for  the  purpose  of  recording  the  proceedings 
to  be  had  and  the  testimony  to  be  taken  by  the  general  court-martial  of  which 


370  PROCEDURE  FOR  COURTS  AND  BOARDS. 

you  are  judge  advocate,  ordered  to  convene  at  the  navy  yard,  Philadelphia, 
Pennsylvania,  on  Monday,  July  -r-,  19 — . 

2.  This  agreement  will  embrace  a  separate  charge  for  the  copying  of  such 
matter  as  may  not  be  taken  stenographically. 

3.  Should  it  appear  at  any  time  subsequent  to  the  making  of  the  original 
agreement  that  service  other  than  that  specified  therein  is  necessary  a  new 
agreement  in  writing  shall  at  once  be  made  concerning  the  additional  service. 
Copies  of  the  agreement  will  be  made  in  duplicate,  one  copy  to  be  retained  by 
the  stenographer  and  the  other  by  the  judge  advocate.    When  the  services  have 
been  performed  you  will  require  the  bills  therefor  to  be  submitted  in  duplicate, 
and  after  certifying  to  their  correctness  will  forward  them  to  the  Bureau  of 
Supplies  and  Accounts,  via  the  Judge  Advocate  General,  with  your  copy  of  the 
agreement. 

4.  The  commandant,  navy  yard,  Philadelphia,  Pa.,  has  been  directed  to  fur- 
nish you  with  the  necessary  clerical  assistance.     ,.,j£fw  }0  Ujinuai-r' 

270;  272 
(Not  appended  to  record.) 


AGEEEMENT    BETWEEN    JUDGE    ADVOCATE    AND    STENOGRAPHER. 


— ,  19—. 


I  propose  to  do  the  necessary  stenographic  work  in  the to  be 

convened  at ,  on  the  -        -  day  of  -      — ,  19 — ,  for  the  - 

,  and  furnish —  copies  of  the  record  for  cents  per 

folio  of  —     —  words  (or,  for  $ per  diem)  ;  and  to  copy  such  matter  as 

may  not  be  taken  stenographically  for —  cents  per  folio. 

Should  additional  service,  other  than  that  herein  specified,  become  necessary, 
a  new  agreement  for  such  service  at  not  more  than  market  rates  therefor  will 
be  made. 


_ 
The  above  proposition  is  accepted. 

.jv  , 

Judge  Advocate. 

This  agreement  should  be  made  in  duplicate,  one  copy  to  be  retained  by  the 
stenographer  and  the  other  by  the  judge  advocate.  When  the  services  have 
been  performed  the  judge  advocate  will  require  the  bills  therefor  to  be  submit- 
ted to  him  in  duplicate,  and,  after  certifying  to  their  correctness,  he  will  for- 
ward them  to  the  Bureau  of  Supplies  and  Accounts,  via  the  Judge  Advocate 
General,  with  his  copy  of  this  agreement. 

270 


LETTER  TO  JUDGE  ADVOCATE  AUTHORIZING  CORRECTION  IN  THE  SPECIFICATIONS. 

NAVY  DEPARTMENT, 
Washington,  July  — ,  19 — . 
From :  The  Secretary  of  the  Navy. 
To :  First  Lieutenant  V —  V.  W ,  U.  S.  Marine  Corps,  judge  advocate, 

7  r         7      »J  O 

general  court-martial,  navy  yard,  Philadelphia,  Pa. 
Subject :  Authorizing  correction  in  specifications. 

1.  You  are  hereby  authorized  and  directed  to  change  the  copy  of  charges  and 
specifications   preferred   by   the   department   against   Lieutenant   X Y. 


PROCEDURE   FOR   COURTS  AND  BOARDS.  371 

,  U.  S.  Navy,  in  the  following  particular:  On  page  3,  line  6,  the  word 


2.  You  will  cause  the  copy  in  possession  of  Lieutenant  Z  -  to  be  corrected 
accordingly. 

(Prefixed  to  record,  following  charges  and  specifications.} 

• 

55 


LETTEB  TO  JUDGE  ADVOCATE  AUTHORIZING  A  NOLLE  PROSEQUI. 

NAVY  DEPARTMENT, 
Washington,  July  — ,  19 — . 
From :  The  Secretary  of  the  Navy. 
To :  First  Lieutenant  V—      -  V.  W—    — ,  U.  S.  Marine  Corps,  judge  advocate, 

general  court  martial,  navy  yard,  Philadelphia,  Pa. 

Subject:  Authorizing  the  entry  of  a  nolle  prosequi  in  the  case  of  Lieutenant 
X—      -  Y.  Z—    — ,  U.  S.  Navy. 

1.  You  are  hereby  authorized  and  directed  to  enter  a  nolle  prosequi  in  the 
case  of  Lieutenant  X —       -  Y.  Z —    — ,  on  the  charge  and  specification  pre- 
ferred against  him   by  the  department,   and  forwarded  to  you  on   July   — , 
19—,  for  trial. 

2.  You  will  return  all  papers  in  the  foregoing  case  to  the  department  (Office 
of  the  Judge  Advocate  General). 

(Appended  to  record.) 

60 


BEQUEST  FOB  COURT  BOOM  AND  FOR  PROVOST  MARSHAL,  GUARD,  AND  ORDERLIES. 

U.  S.  S.  "TEXAS,"' 
Navy  Yard,  New  York,  July  — ,  19 — . 

From :  First  Lieutenant  V V.  W ,  U.  S.  Marine  Corps,  judge  advo- 
cate, general  court-martial. 

To :  Commandant,  via  commanding  officer. 

Subject :  Request  for  court  room  and  for  detail  of  provost  marshal,  guard,  and 
orderlies  for  general  court-martial. 
1.  Having  been  appointed  judge  advocate  of  a  general  court-martial,  ordered 

to  convene  at  the  navy  yard  under  your  command  at  10  o'clock  a.  m.,  on  Monday, 

July  — ,  19 — ,  I  respectfully  request  that  a  suitable  place  be  assigned  for  the 

sessions  of  the  court,  and  that  a  provost  marshal  and  the  necessary  guard  and 

orderlies  be  detailed. 

253;  274;  276 

. 
OBDEB  TO  PRESIDENT  OF  COUBT  WHEN  TBAVEL  IS  INVOLVED. 

NAVY  DEPARTMENT, 
BUBEAU  OF  NAVIGATION, 
Washington,  July  — ,  19 — . 
From :  Bureau  of  Navigation. 

To:  Captain  A B.  C ,  U.  S.  Navy,  commanding  U.  S.  S.   Texas, 

navy  yard,  Boston,  Mass. 


372  PROCEDURE  FOR  COURTS  AND  BOARDS. 

Subject:  Orders  to  proceed  to  the  navy  yard,  New  York,  in  connection  with 

general  court-martial. 

l.Haviiig  been  unpointed  president  of  a  general  court-martial  ordered  to 
convene  at  the  navy  yard,  New  York,  at  10  o'clock  a.  m.,  on  Monday,  July  — , 
19 — ,  you  will  proceed  to  that  place  and  report  to  the  commandant  of  the  said 
yard  on  the  date  specified. 

2.  The  members  of  the  court  and  the  judge  advocate  have  been  directed  to 
report  to  you. 

3.  Upon  the  completion  of  this  duty  return  to  Boston,  Mass.,  and  resume 
present  duties. 

(If  court  is  ordered  by  a  convening  authority  other  than  the  Secretary  of  the 
Navy,  this  order  is  issued  by  such  convening  authority.) 

(When  the  president  of  the  court  is  senior  to  the  commandant  of  the  station 
he  is  ordered  to  confer  with  instead  of  reporting  to  the  latter. ) 
(Not  appended  to  record.) 

228 
• 

ORDER  TO  PRESIDENT  OF  COURT   WHEN    NO  TRAVEL   IS   INVOLVED. 

• 

NAVY  DEPARTMENT, 
BUREAU  OF  NAVIGATION, 

Washington,  July  —  19—. 
From :  Bureau  of  Navigation. 
To :  Captain  A—      -  B.  C—    — ,  U.  S.  Navy,  commanding  U.  S.  S.  Texas,  navy 

yard,  Boston,  Mass. 

Subject :  Orders  to  report  to  commandant,  navy  yard,  Boston,  Mass.,  for  duty 
as  president  of  a  general  court-martial. 

1.  Having  been  appointed  president  of  a  general  court-martial  ordered  to 
convene  at  the  navy  yard,  Boston,  Mass.,  you  will  report  to  (confer  with)  the 
commandant  of  the  said  yard  on  the  date  specified. 

2.  The  members  of  the  court  and  the  judge  advocate  have  been  directed  to 
report  to  you. 

3.  This  is  in  addition  to  your  present  duties. 
(Not  appended  to  record.    See  note  ante.) 


ORDER  TO  MEMBER  OR  JUDGE  ADVOCATE  WHEN  TRAVEL  IS  INVOLVED. 

NAVY  DEPARTMENT, 

BUREAU  OF  NAVIGATION, 

Washington,  July  — ,  19—. 
From:  Bureau  of  Navigation. 

To:  Lieutenant  M —      -  N.  O ,  U.  S.  Navy,  U.  S.  S.  Texas,  Navy  Yard, 

New  York,  via  Commanding  Officer. 
Subject :  Appointment  as  member  of  a  general  court-martial. 

1.  Having  been  appointed  a  member   (judge  advocate)   of  a  general  court- 
martial  ordered  to  convene  at  the  navy  yard,  Philadelphia,  Pennsylvania,  at 
10  o'clock  a.  m.,  on  Monday,  July  — ,  19 — ,  you  will  proceed  to  that  place  and 

report  to  Captain  A —      —  B.  C ,  U.  S.  Navy,  president  of  that  court,  at 

the  time  specified. 

2.  Upon  the  completion  of  this  duty  return  to  New  York. 

3.  This  is  in  addition  to  your  present  duties. 
(Not  appended  to  record.    See  note  ante.) 


1 


PROCEDURE   FOB  COURTS  AND  BOARDS.  373 

ORDER  TO  MEMBER  OR  JUDGE  ADVOCATE  WHEN  NO  TRAVEL  IS  INVOLVED. 

NAVY  DEPARTMENT, 

BUREAU  OF  NAVIGATION, 

Washington,  July  — ,  19 — . 
From :  Bureau  of  Navigation. 

To :  Lieutenant  M—      -  N.  O ,  U.  S.  Navy,  U.  S.  S.  Texas,  via  Command- 
ing Officer. 
Subject :  Appointment  as  member  of  a  general  court-martial. 

1.  Having  been  appointed  a  member  (judge  advocate)    of  a  general  court- 
martial  ordered  to  convene  at  the  navy  yard,  Boston,  Mass.,  at  10  o'clock  a.  m., 

on  Monday,  July  — ,  19 — ,  you  will  report  to  Captain  A —       -  B.   C , 

U.  S.  Navy,  the  president  of  the  court,  at  the  place  and  time  specified. 

2.  This  is  in  addition  to  your  present  duties. 
(Not  appended  to  record.    See  note  ante.) 


SUMMONS   FOR    NAVAL   WITNESS. 

COURT  MARTIAL  ROOM,  NAVY  YABD, 

Philadelphia,  Pa.,  July  — ,  19 — . 

From :  First  Lieutenant  V V.  W ,  U.  S.  Marine  Corps,  judge  advo- 
cate, general  court-martial. 

To:  Lieutenant  G—      -  C.  C —    — ,  U.  S.  Navy,  navy  yard,  Philadelphia,  Pa., 
via  Commandant. 

Subject:  Summons  as  a  witness  before  a  general  court-martial. 
You  are  hereby  summoned  to  appear  before  a  general  court-martial  at  the 

navy  yard,  Philadelphia,  Pa.,  at  10  o'.clock  a.  m.,  July  — ,  19 — ,  as  a  witness 

for  the  prosecution   (defense)   in  the  case  of  Lieutenant  X Y.  Z , 

US  Navy. 

(Not  appended  to  record.) 


122;  123 


SUBPCENA  FOR  CIVILIAN  WITNESS. 

NAVAL  GENERAL  COURT-MARTIAL  OF  THE  UNITED  STATES, 

Navy  Yard,  New  York. 
UNITED  STATES  1 

v.  I  Subpoena. 

LIEUTENANT  X —      -  Y.  Z —    — ,  U.  S.  NAVY,  j 

The  President  of  the  United  States  to  J B.  8 : 

You  are  hereby  commanded  to  appear  as  a  witness  for  the  ,  at  10 

o'clock  a.  m.,  June  22,  19 — ,  before  a  naval  general  court-martial  of  the  United 
States,  convened  at  the  navy  yard,  New  York,  by  an  order  of  the  Secretary  of 
the  Navy,  dated  June  11,  19 — . 

And  herein  fail  not  under  penalty  of  five  hundred  dollars  fine  or  imprison- 
•ment  for  six  months,  or  both. 

Bring  with  you  this  precept  and  depart  not  the  court  without  leave. 


374  PROCEDURE  FOR  COURTS  AND  BOARDS. 

Witness :  Capt.  A— B.  G ,  U.  S.  Navy,  president  of  the  said  court, 

this  21st  day  of  June,  19 — . 

V V.  W -, 

First  Lieutenant,  U.  8,  Marine  Corps, 

Judge  Advocate. 

(In  the  case  of  a  civilian  witness  rending  outside  the  State,  Territory,  or 
district  where  the  court  is  held,  or  whose  appearance  is  desired  before  a  court 
or  board  other  than  a  general  court-martial  or  court  ol  inquiry,  the  foregoing 
should  read: 

You  are  hereby  requested  to  appear  as  a  witness  for  the  -  — ,  at  10 
o'clock  a.  m.,  June  22,  19 — ,  before  a  naval  general  court-martial  of  the  United 
States  convened  at  the  navy  yard,  New  York  (or,  before  a  summary  court- 


martial,  etc.,  or  as  the  case  may  be). 

V V.  W , 

First  Lieutenant,  U.  S.  Marine  Corps, 

Judge  Advocate. 
124;  129 


SUBPOENA  DUCES   TECUM   FOR  NAVAL   WITNESS. 

' 

COURT  MARTIAL  ROOM, 
Navy  Yard,  New  York,  July  — ,  19 — . 

From :  First  Lieutenant  V V.  W ,  U.  S.  Marine  Corps,  judge  advo- 
cate, general  court-martial. 

To:  Lieutenant  H H.  J ,  U.  S.  Navy,  navy  yard,  New  York,  via 

Commandant. 

Subject :  Summons  as  witness  before  a  general  court-martial,  with  instructions 
to  bring  before  the  court  certain  described  documents. 


1.  You  are  hereby  summoned  to  appear  before  a  general  court-martial  at 
the  navy  yard,  New  York,  at  10  o'clock  a.  m.,  July  — ,  19 — ,  as  a  witness  for  the 

prosecution    (defense)    in  the  case  of  Lieutenant  X — —  -  Y.  Z — ,  U.   S. 

Navy. 

2.  You  will  also  bring  with  you  the  following  described  documents.     (De- 
scribe them.) 

202 


SUBPCENA  DUCES  TECUM  FOR  CIVILIAN  WITNESS. 

NAVAL  GENERAL  COURT-MARTIAL  OF  THE  UNITED  STATES, 

Navy  Yard,  New  York. 
UNITED   STATES  | 

v.  1  Subpoena. 

LIEUTENANT  X Y.  Z ,  U.  S.  NAVY.J 


The  President  of  the  United  States  to  J — B.  S : 

You  are  hereby  commanded  to  appear  as  a  witness  for  the  prosecution  (de- 
fense), at  10  o'clock  a.  m.,  June  22,  19 — ,  before  a  naval  general  court-martial 
of  the  Unite.d  States,  convened  at  the  navy  yard,  New  York,  by  an  order  of  the 
Secretary  of  the  Navy,  dated  June  11,  19 — ,  and  bring  with  you  the  following- 
described  documents:  (Here  describe  them.) 

And  herein  fail  not  under  penalty  of  five  hundred  dollars  fine  or  imprison- 
ment for  six  months,  or  both. 


PROCEDURE  FOR  COURTS  AND  BOARDS.  375 

Bring  with  you  this  precept,  and  depart  not  the  court  without  leave. 
Witness :  Capt.  A —      —  B.  C —    — ,  U.  S.  Navy,  president  of  the  said  court, 
this  21st  day  of  June,  19 — . 

V V.  W , 

First  Lieutenant,  U.  8.  Marine  Corps,  Judge  Advocate. 

202 

SUBPCENA  FOB  TAKING  DEPOSITION   OF  A  CIVILIAN    WITNESS. 

• 

NAVAL  GENERAL  COUBT-MAETIAL  OF  THE  UNITED  STATES, 

Navy  Yard,  New  York. 
UNITED   STATES 

v.  Subpoana. 

LIEUTENANT  X Y.  Z ,  U.  S.  NAVY. 

The  President  of  the  United  States  to  J B.  S : 

You  are  hereby  commanded  to  appear  as  a  witness  for  the  prosecution  (de- 
fense) on  June  — ,  19 — •,  at  —  o'clock  —  in.,  before  (to  be  designated  by  the 
convening  authority),  detailed  to  take  your  deposition  for  use  before  a  naval 
general  court-martial  of  the  United  States,  convened  at  the  navy  yard,  New 
York,  by  an  order  of  the  Secretary  of  the  Navy,  d&ted  June  11,  19 — . 

And  herein  fail  not  under  penalty  of  five  hundred  dollars  fine  or  imprison- 
ment for  six  months,  or  both. 

Bring  with  you  this  precept,  and  depart  not  without  leave. 

Witness :  Capt.  A—      -  B.  C ,  U.  S.  Navy,  president  of  the  said  court, 

this  21st  day  of  June,  19 — . 

V V.  W , 

First  Lieutenant,  U.  S.  Marine  Corps,  Judge  Advocate. 

180 


LETTER  DIRECTING  THE  TAKING  OF  IMPOSITIONS. 

DEPARTMENT  OF  THE  NAVY, 

Washington,  November  19,  1915. 
From :  The  Secretary  of  the  Navy.     (Or,  other  convening  authority,  if  addressed 

to  an  officer  under  his  command. ) 
To :  Lieutenant ,  U.  S.  Navy,  U.  S.  Navy  recruiting  station , 


Subject :  Designation  to  take  depositions. 

Inclqsures :    Subprenas  and  interrogatories  to   be  used   in  taking  depositions 
to  be  used  in  the  case  of  -  — ,  fireman,  first  class,  U.  S.  Navy. 

1.  You  are  hereby  authorized  and  directed  to  serve  the  subpoenas  and  pro- 
pound the  interrogatories  forwarded  herewith. 

2.  You  will  take  the  depositions  required  at  the  earliest  practicable  date 
and  you  will  notify  the  judge  advocate  of  the  general  court-martial  at  the 
navy  yard,  New  York,  as  to  the  probable  date  on  which  he  may  expect  to 
receive  this  testimony. 

3.  Upon  completion  of  the  said  depositions,  forward  the  same  direct  to  the 
judge  advocate  of  the  general  court-martial  at  the  navy  yard,  New  York, 

180;  181 


376  PROCEDURE   FOR  COURTS  AND  BOARDS. 

INTERROGATORIES    AND    DEPOSITION. 

Interrogatories. 

UNITED  STATES 
v. 

LIEUTENANT  X —       -  Y.  Z 

U.  S.  Navy. 

The  following  interrogatories  and  cross-interrogatories  to  be  propounded  un- 
der section  16  of  the  act  of  Congress  approved  February  16,  1909,  to  - 

— ,  stationed  (or  residing)  at — ,  a  witness  for  the  prosecution 

(defense)  in  the  above-entitled  case  now  pending  and  to  be  tried  before  the 
general  court-martial  convened  by  an  order  of  the  Secretary  of  the  Navy,  dated 
June  11,  19 — ,  are  accepted  by  the  court  in  open  session,  the  defense  (prosecu- 
tion) having  been  given  reasonable  opportunity  to  submit  cross-interrogatories 
(or  are  agreed  upon  by  both  parties  in  advance  of  the  assembling  of  the  court 
and  subject  to  exceptions  when  read  in  court),  and  are  respectfully  forwarded 

to with  the  request  that  some  suitable  officer  may  be  designated 

to  take,  or  cause  to  be  taken,  the  deposition  of  the  said  witness  thereon : 

First  interrogatory :  Are  you  in  the  United  States  Navy?  If  yes,  what  is  your 
full  name,  rank,  and  vessel  or  station?  If  no,  what  is  your  full  name,  occupa- 
tion, and  residence? 

Second  interrogatory:  Do* you  know  the  accused?  If  yes,  how  long  have  you 
known  him? 

Third  interrogatory  : ? 

Etc. 

First  cross-interrogatory  : ? 

Etc. 

First  interrogatory  by  the  court :  -  —  ? 

Etc. 

Dated  at  the  navy  yard,  New  York,  June  — ,  19 — . 

j^ g   Q 

Captain,  U.  S.  Navy,  President  of  the  Court. 

V V.  W , 

First  Lieutenant,  U.  S.  Marine  Corps,  Judge  Advocate. 

(Or,  if  taken  in  advance  of  the  assembling  of  the  court,  the  signatures  should 
be  those  of  the  judge  advocate  and  the  accused,  thus:) 

V V.  W , 

First  Lieutenant,  U.  S.  Marine  Corps,  Judge  Advocate. 

X ,  Y.  Z , 

Lieutenant,  U.  S.  Navy. 

Deposition. 

J B.  S ,  the  witness  above  named,  having  been  first  duly  sworn  by 

me,  Lieutenant  ,  U.  S.  Navy,  in  charge  of  U.  S.  Navy  Recruiting  Sta- 
tion, - — ,  doth  depose  and  say  for  full  answers  to  the  foregoing  interroga- 
tories, as  follows: 

To  the  first  interrogatory : . 

Etc. 

J B.  S . 


Subscribed  and  sworn  to  before  me  this day  of  June,  19 — . 


Lieutenant,  U.  S.  Navy,  in  charge  of  U.  8.  Navy  Recruiting  Station, 

180  to  183 


PROCEDURE  FOR   COURTS  AND  BOARDS.  377 

RETURN  OF  SERVICE  ON  A  SUBPOENA. 

UNITED  STATES 

v. 
LIEUTENANT  X Y.  Z —    — ,  U.  S.  NAVY. 

NAVY  YARD,  NEW  YORK, 

June  22,  19 — . 
I  certify  that  I  made  service  of  the  within  subpoena  on  J B.  S 


the  witness  named  therein,  by  personally  delivering  to  him  a  duplicate  of  the 
same  at  (address),  on  the  21st  day  of  June,  19 — . 

Lieutenant,  U.  S.  Navy, 
Provost  Marshal,  General  Court-Martial. 
(Or  other  person,  as  the  case  may  be.) 


>ss.     ( State  and  county,  or  navy  yard,  etc.,  where  affidavit  is  taken. ) 

B —      -  R.  G -,  being  duly  sworn,  on  his  oath  states  that  the  foregoing 

certificate  is  true. 

B—      -  R.  G—    — . 
Subscribed  and  sworn  to  this  22d  day  of  June,  19 — ,  before  me. 

V V.  W — , 

First  Lieutenant,  U.  S.  Marine  Corps,  Judge  Advocate. 
(Or  other  officer,  giving  title,  before  whom  affidavit  is  made.) 

129 


WARRANT  OF  ATTACHMENT. 
NAVAL  GENERAL  COURT-MARTIAL  OF  THE  UNITED  STATES. 

UNITED  STATES 

v. 
LIEUTENANT  X—      -  Y.  Z —    — ,  U.  S.  NAVY 

The  President  of  the  United  States  to  Lieut.  B R.  G ,  U.  S.  Navy, 

provost  marshal  for  said  court: 

Whereas  J B.  S —  — ,  of ,  was  on  the  day  of 

June,  19 — ,  at  —  — ,  duly  subpoanaed  to  appear  and  attend  at  the  navy  yard, 

New  York,  on  the day  of  June,  19 — ,  at  10  o'clock  a.  m.,  before  a  naval 

general  court-martial  of  the  United  States,  duly  convened  by  an  order  of  the 
Secretary  of  the  Navy,  dated  June  11,  19 — ,  to  testify  on  the  part  of  the  prose- 
cution (defense)  in  the  above-entitled  case: 

And  whereas  he  has  willfully  neglected,  refused,  and  failed  to  appear  and 
attend  (or,  and  to  produce  documentary  evidence  which  he  was  legally  sub- 
poenaed to  produce)  before  said  general  court-martial  as  by  said  subprena 
required : 

And  whereas  he  is  a  necessary  and  material  witness  on  behalf  of  the  prosecu- 
tion (defense)  in  the  above-entitled  case: 

Now,  therefore,  by  virtue  of  the  power  vested  in  said  naval  court-martial  by 
section  11  of  an  act  of  Congress  entitled  "An  act  to  promote  the  administration 
of  justice  in  the  Navy,"  approved  February  16,  1909,  of  which  court-martial  I, 


378 


PROCEDURE  FOR  COURTS  AND  BOARDS. 


the  undersigned,  am  president,  you  are  hereby  commanded  and  empowered  to 

apprehend  and  attach  the  said  J B.  S —    — ,  wherever  he  may  be  found 

within  the  State  (Territory  or  District)  of  New  York,  and  forthwith  bring  him 
before  the  said  general  court-martial  assembled  at  the  navy  yard,  New  York,  to 
testify  as  required  by  said  subpoena. 
Dated  Navy  Yard,  New  York,  June  — ,  19 — . 

A—      -  B.  C , 

Captain,  U.  8.  Navy,  President  of  said  General  Court-Martial. 

131 


ACCOUNT  OF   CIVILIAN    WITNESS   NOT   IN   GOVERNMENT   EMPLOY. 


„ ,   191... 

THE  UNITED  STATES,  NAVY  DEPARTMENT, 

To : ,  Dr. 

Address 



Dollars.        Cents. 

For  allowance  while  in  attendance  before  a court-martial  convened 

at from .,191.., 

to ,  191..,  as  per certificate hereon, 

being days,  at  $1.50  per  day 

For  mileage  from to 

and  return,  in  accordance  with  subpoena  attached,  being 

miles,  at  5  cents  per  mile 

Total 

I  solemnly  swear  that  the  above  account  is  correct,  and  that  I  have  not  been 
furnished  with  Government  transportation  for  any  part  of  the  journey  for 
which  travel  fare  is  charged,  and  that  I  have  not  heretofore  received  payment 
for  any  part  of  this  account. 

Sworn  to  and  subscribed  before  me  at ,  on  this day  of 

191 
__        , 

'T 
(Judge  Advocate,  or  proper  officer.) 

I  certify  that . ,  a  civilian  not  in  Government  employ,  has  been 

in  attendance  as  a  witness  before  the court  martial,  of  which  I  am 

,  in  session  at . from ,  191 ,  to , 

191 ,   inclusive*   and  that was  duly   summoned  thereto   from   

and  that was  not  furnished   transportation   by   the   Government   for 

any  portion  of  this  journey. 

,  U.  S. 

(Judge  Advocate,  or  proper  officer.) 


PROCEDURE   FOR  COURTS  AND   BOARDS.  379 

To , 

Pay  _.  -,  U.  S.  Navy. 

You  are  hereby  directed  to  pay  mileage  and  witness  fees  or  cost  of  travel 
and  expenses  for  civilian  witness,  whose  account  is  set  forth  above  in  the 
sum  of ($ )• 


U.  S.  Navy,  Commanding. 


Paid  by  check  No. on  assistant   treasurer   at ,   dated  

,  191__,  for  $ ,  in  favor  of 


, 

Pay ,  U.  S.  N. 

(Receipt  to  be  signed  only  when  payment  is  made  in  cash.) 

Received ,  191__,  of ,  Pay ,  U.  S.  Navy,  in  cash 

._  dollars,  in  full  of  above  account. 


(Witness.) 

(Certified  copy  of  order  convening  the  court  and  the  subpoena  must  be  at- 
tached to  this  voucher.) 


VOUCHER     FOR     REIMBURSEMENT     OF     TRAVELING     EXPENSES,     CIVILIAN     WITNESS     IN 

GOVERNMENT    EMPLOY. 

The  UNITED  STATES,  NAVY  DEPARTMENT, 

To ,  Dr. 

Address:  _. 


Dollars. 

Cents. 

For  reimbursement  of  traveling  expenses  incurred  in  attendance  as  a  witness  be- 

,19  ,  to  ,19  ,  in  accordance  with 

the  subpoena  which  is  attached  hereto  and  forms  a  part  of  this  account—  as  per 
itemized  statement  herein  set  forth  .           

I  solemnly  swear  that  the  above  account  and  schedule  annexed  are  just  and 
true  in  all  respects,  as  verified  by  a  memorandum  kept  by  me ;  that  the  distances 
as  charged  have  been  actually  and  necessarily  traveled  on  the  dates  therein 
specified ;  that  the  amounts  as  charged  have  been  actually  paid  by  me  for  travel- 
ing expenses ;  that  I  have  not  and  will  not  receive,  directly  or  indirectly,  from 
any  person,  agency,  or  corporation  any  sums  as  rebate  on  account  of  any  ex- 
penses of  transportation  included  in  this  account;  that  none  of  such  distances 
for  which  charge  is  made  was  traveled  under  any  free  pass  on  any  conveyance ; 
that  no  part  of  the  account  has  been  paid  by  the  United  States,  but  the  full 
amount  is  justly  due ;  that  all  expenditures  included  in  said  account  other  than 
my  own  personal  traveling  expenses  were  made  under  urgent  and  unforeseen 
public  necessity,  and  that  it  was  not,  for  the  reasons  stated  herein,  feasible  to 

26450°^17 25 


380 


PROCEDURE   FOR   COURTS  AND  BOARDS. 


have  payment  made  for  such  expenditures  by  a  pay  officer  of  the  Navy  Depart- 
ment.   So  help  me  God. 

,     .                                         ,  .                  , 
Sworn  to  and  subscribed  before  me  at ,  on  this _  day  of , 


ft.  ,  u.  S. 

(Judge  Advocate,  or  proper  officer.) 

I  certify  that ,  a  civilian  in  Government  employ,  has  been  in  attendance 

as  a  witness  before  the court  martial,  of  which  I  am ,  in  session 

at ,  from ,  19__,  to ,  19__,  inclusive,  and  that  he  was  duly 

summoned  thereto  from ,  and  that  he  was  ( )  furnished  transporta- 
tion by  the  Government  for  ( )  this  journey. 

,  U.  S. 

(Judge  Advocate,  or  proper  officer.) 

To , 

Pay ,  U.  S.  Navy: 

You  are  hereby  directed  to  pay  the  cost  of  travel  and  expenses,  for  civilian 
witness  whose  account  is  set  forth  above,  in  the  sum  of ($ ). 

,  U.  S.  Navy,  Commanding. 

Paid  by  check  No. ,  on  assistant  treasurer  at ,  dated , 

19 ,  for  $ ,  in  favor  of 

Pay ,  U.  S.  N. 

(Receipt  to  be  signed  only  when  payment  is  made  in  cash.) 

Received ,  19__,  of , Pay ,  U.  S.  N.,  in  cash, 

dollars,  in  full  of  above  account. 

"witness 

(Certified  copy  of  order  convening  the  court  and  the  subpoena  must  be  at- 
tached to  this  voucher.) 

Itemized  statement  of  traveling  expenses,  and  other  expenses  incurred  under 
stress  of  urgent  or  unforeseen  public  necessity. 

(Fill  in  form  on  this  voucher  showing  how  transportation  requests  were  used.) 

. I -, M- . 


Date. 

• 


• 
Character  of  expenditures. 

- 

— — • — — — 


Sub- 
voucher 
No. 


Amount. 


Dollars.    Cents 


19... 

::::::::: 



I:::::::::::::::::::::::::::::::::::::::::::::::: 


Total  account  claimed. . . 


PROCEDURE   FOR  COURTS  AND  BOARDS.  381 

Memorandum  of  travel  performed  upon  transportation  requests. 


No.  of  trans- 
portation 
request. 

Date  of  travel. 

From— 

To- 

Via  R.  R. 

Dollars. 

Cents. 



132 


CERTIFICATE  OF  COURT  TO  DISTRICT  ATTORNEY  IN  CASE  OF  A  CONTUMACIOUS  CIVILIAN 

WITNESS. 

COURT-MARTIAL  ROOM, 

Navy  Yard,  New  York,  N.  Y.,  June  — ,  19 — . 
The  United  States  District  Attorney  for  the  Southern  District  of  New  York. 

SIR  :  A  naval  general  coiart-martial  was  convened  at  the  navy  yard,  New  York, 
situated  in  Brooklyn,  State  of  New  York,  by  an  order  of  the  Secretary  of  the 
Navy  (or  as  the  case  may  be).  A  certified  copy  of  said  order  is  hereto  appended, 
marked  " —  — " ;  also  certified  copies  of  subsequent  modifications  thereof  are 
hereto  appended,  marked  " "  and  " ." 

In  the  case  of  the  United  States  against ,  U.  S.  Navy,  trans- 
mitted to  the  court  by  a  letter,  certified  copy  hereto  appended,  marked  " : — ," 

a  material  witness  for  the  prosecution  (defense),  L J.  B ,  residing 

at  ,  within  this  State   (Territory  or  District),  was  duly  subpoenaed  to 

appear  as  such  witness  before  said  court  martial;  certified  copy  of  subpoena 
(duces  tecum)  and  of  the  return  of  service  thereon  hereto  appended,  marked 


Upon  being  duly  sworn  as  a  witness  in  the  aforesaid  case,  and  in  the  course 

of  his  testimony  therein,  the  said  L J.  B was  asked  the  following 

question  by  counsel  for  the  defense  (judge  advocate) :  Q.  *    *    *? 

The  witness  declined  to  answer  the  question,  and,  having  been  paid  (ten- 
dered )  his  lawful  fee  and  mileage ;  was  then  cautioned  and  informed  as  to  the 
penalty  for  persisting  in  his  refusal  to  answer  the  said  question,  which  was 
again  put  to  him.  The  witness  again  declined  to  answer,  and  gave  the  fol- 
lowing reason  for  his  refusal:  " ."  (Enter  reason  of  witness  in  full, 

and  verbatim  if  possible.) 

The  foregoing  facts  are  certified  to  you  as  correct  for  your  action  thereon,  in 
accordance  with  the  provisions  of  section  12  of  the  act  of  February  16,  1909 
(35  Stat,  621). 

By  order  of  the  court: 

A B.  C , 


Captain,  U.  S.  Navy,  President. 


Attest : 


V.  W- 


First  Lieutenant,  U.  S.  Marine  Corps,  Judge  Advocate. 


Object  of  certificate. — The  certification  of  facts  is  for  the  information  of  the 
district  attorney  and  to  enable  him  to  prepare  the  proper  information  charging 
the  ivitness  with  the  offense,  and,  except  in  two  cases  mentioned  below,  the 
accuracy  and  precision  required  in  an  indictment  is  not  essential. 

Precise  question  set  out. — The  first  exception  referred  to  above  is  where  the 
witness  refuses  to  answer  a  question.  In  such  a  case  the  precise  question  pro- 


382  PROCEDURE   FOR  COURTS  AND  BOARDS. 

pounded  to  him  should  be  set  out,  likcivise  the  reason,  if  any,  which  the  wit- 
ness gives  for  not  answering. 

Refusal  to  obey  subpcena  duces  tecum. — In  case  the  contumacy  is  in  the 
refusal  of  the  witness  to  produce  a  book,  paper,  or  document  the  second  excep- 
tion referred  to  above  occurs.  In  such  a  case  the  witness,  having  been  sub- 
pwnaed  to  produce  such  book,  etc.,  the  book,  paper,  or  document  should  be  par- 
ticularly and  certainly  described  and  identified,  which  description  should  also 
correspond  with  that  given  in  the  subpcena  duces  tecum.  The  reason  for  the 
refusal  of  the  witness  should  also  be  accurately  set  forth. 

Substance  of  certificate. — The  certificate  should  contain  the  following  infor- 
mation: Copy  of  order  convening  court,  with  copies  of  any  subsequent  modifica- 
tions. Copy  of  subpoena  served  on  the  ivitness,  showing  the  place  from  which 
summoned  and  that  such  place  was  within  the  State,  Territory,  or  District 
within  which  the  court  is  held.  Facts  as  to  (1)  neglect  to  appear,  (2)  refusal  to 
appear,  (3)  refusal  to  qualify  as  a  witness,  (4)  refusal  to  testify,  or  (5)  refusal 
to  produce  documentary  evidence,  all  to  be  definitely  but  succinctly  stated. 
Also  a  statement  that  the  witness  was  paid  or  tendered  his  lawful  fee  and 
mileage. 

Further  information. — With  a  proper  observance  of  the  particularity,  accu- 
racy, and  precision  in  the  two  cases  above  referred  to,  the  matter  indicated  in 
the  foregoing  paragraph  is  sufficient  to  meet  the  requirements  of  the  law.  Any 
further  information  can  readily  be  furnished  if  needed  by  the  district  attorney. 

Record  and  signature. — The  record  of  the  proceedings  shall  state  the  facts 
relative  to  any  case  of  contumacy,  and  that  the  court  has  ordered  the  facts  to 
be  certified  to  the  district  attorney.  The  formal  certificate  of  facts,  stating 
that  it  is  made  "  by  order  of  the  court,"  will  be  sufficiently  signed  if  done  offi- 
cially by  the  president  of  the  court  and  attested  by  the  judge  advocate. 

(Copy  appended  to  record.) 

130;  174;  Act  of  Feb.  16,  1909,  under  42  A.  G.  N. 


RECEIPT  OF  ACCUSED  FOR  COPY  OF  RECORD.  ,)fjrp 

GENERAL  COURT  MARTIAL  ROOM, 
Navy  Yard,  Philadelphia,  Pa.,  July  — ,  19 — . 

I  hereby  acknowledge  the  receipt  of  a  copy  of  the  record  of  proceedings  of 
my  trial  by  general  court-martial  held  this  date  (or,  as  the  case  may  be.) 

Seaman,  U.  S.  Navy. 
(Appended  to  record.) 

366  to  368 

WAIVER  OF  THE  ACCUSED  OF  THE  RIGHT  TO  COPY  OF  RECORD. 

GENERAL  COURT  MARTIAL  ROOM,. 
Navy  Yard,  Philadelphia,  Pa.,  July  — ,  19 — . 

Without  any  coercion  whatever,  I  hereby  waive  my  right  to  a  copy  of  the 
record  of  the  proceedings  of  my  trial  by  general  court-martial  held  this  date 
(or,  as  the  case  may  be). 

A D.  B , 

Private,  U.  S.  Marine  Corps. 
(Appended  to  record.) 

368  to  369 


PROCEDURE  FOR  COURTS  AND  BOARDS.  383 

LETTER  INFORMING  CONVENING  AUTHORITY  THAT  COURT  HAS  FINISHED  ALL  BUSINESS 

BEFORE    IT. 

COURT  MARTIAL  ROOM, 
Navy  Yard,  New  York,  July  — ,  19—. 

From:  Captain  A —      -  B.  C —    — ,  U.  S.  Navy,  president  general  court-mar- 
tial, navy  yard,  New  York. 
To :  The  Secretary  of  the  Navy. 
Subject :  Adjournment  of  court  after  the  completion  of  all  business  before  it. 

1.  The  general  court-martial  of  which  I  am  president,  having  finished  all  the 
business  before  it,  has  adjourned  to  await  your  further  instructions. 

241 


ORDER  DISSOLVING  COURT. 

NAVY  DEPARTMENT, 
Washington,^  July  — ,  19 — . 
From :  The  Secretary  of  the  Navy. 
To :  Captain  A —      -  B.  C —    — ,  U.  S.  Navy,  president  general  court-martial, 

navy  yard,  New  York. 
Subject :  Dissolving  general  court-martial. 

1.  The  general  court-martial  of  which  you  are  president  is  hereby  dissolved. 

2.  You  will  notify  the  other  members  of  the  court  and  the  judge  advocate 
accordingly. 

389 


II. 

SUMMARY  COURTS-MARTIAL. 

(Chapter  XI— Part  I.) 


385 


.II 
iTHUOO  THAW 

(.1  hT!*!—  ]  iK>) 


INCIDENTS  OF  A  TEIAL  BY  SUMMARY  COURT- 
MARTIAL. 


1.  Court  meets. 

2.  Accused  introduced. 

3.  Accused  signifies  wishes  as  to  counsel. 

4.  Counsel,  if  any,  introduced. 

5.  Precept  and  other  documents  relating  to  organization  read. 

6.  Challenge  of  members. 

7.  Members  sworn  by  recorder. 

8.  Recorder  sworn  by  senior  member. 

9.  Has  accused  received  copy  of  specification (s)  ?    If  so,  when? 

10.  Specification  (s)  pronounced  in  due  form  and  technically  correct. 

11.  Accused  asked  if  he  is  ready  for  trial. 

12.  All  witnesses  not  otherwise  connected  with  the  trial  directed  to  withdraw. 

13.  Specification  (s)   read  by  recorder. 

14.  Arraignment. 

15.  Preliminary  motion,  if  any. 

16.  Plea  to  issue.  /(/£ 

17.  Prosecution  begins.        }'1<G 

18.  Prosecution  rests. 

19.  Defense  begins. 

20.  Defense  rests. 

21.  Rebuttal. 

22.  Surrebuttal. 

23.  Statements. 

24.  Trial  finished. 

25.  Court  cleared  for  deliberation  on  finding. 

26.  Recorder  recalled  to  record  finding. 

27.  Recorder  informs  court  as  to  previous  convictions. 

28.  Court  opened  to  receive  any  record  of  previous  convictions. 

29.  Court  cleared  for  deliberation  on  sentence. 

30.  Recorder  recalled  to  record  sentence. 

31.  Recommendation  for  clemency,  if  any. 

32.  Court  opened. 

33.  Adjournment. 

387 


-THTJOO  YffAMl/  •  JAIJIT  A   •](  >m 

.JAITfl 


J8HOJ- 

. 


SEAMAN,  U.  S.  NAVY, 
17,  19—. 
85 

RECORD  OF  PROCEEDINGS 


OF    A 

SUMMARY  COURT-MARTIAL 

CONVENED  ON  BOARD 

THE  U.  S.  S.  WYOMING. 
82  to  92;  454 

ORDER   CONVENING   A    SUMMARY   COTTRT-MARTTAL. 

402  to  403 


U.  S.  S.  WYOMING, 
Hampton  Roads,  Va.,  July  — ,  19 — . 
From:  Commanding  Officer. 

To :  Lieutenant  A R.  K ,  U.  S.  Navy. 

Subject:  Convening  summary  court-martial. 

1.  A  summary  court-martial  is  hereby  ordered  to  convene  on  board  this  ves- 
sel on  Friday,  July  — ,  19 — ,  or  as  soon  thereafter  as  practicable,  for  the  trial 
of  such  persons  as  may  be  legally  brought  before  it. 

2.  The  court  will  be  constituted  as  follows: 

Lieutenant  A —  -  R.  K—  — ,  U.  S.  Navy ;  Lieutenant  J—  -  M.  D —  — , 
U.  S.  Navy;  and  First  Lieutenant  J—  -  H.  R.—  — ,  U.  S.  Marine  Corps, 
members,  and  Ensign  J H.  R ,  U.  S.  Navy,  recorder. 

404  to  409 


FIRST  DAY. 

(//  case  covers  more  than  one  day.) 

U.  S.  S.  WYOMING, 
Hampton  Roads,  Va.,  Friday,  July  17, 19 — . 

The  court  met  at  10  a.  m. 

401 

Present : 

Lieutenant  A—       -  R.  K-      — ,  U.  S.  Navy; 

Lieutenant  J M.  D —     — ,  U.  S.  Navy;  and 

First  Lieutenant  G: B.  W—      — ,  U.  S.  Marine  Corps,  mem- 
bers; and 

Ensign  J H.  R ,  U.  S.  Navy,  recorder. 

358 


390  PROCEDURE   FOR  COURTS  AND  BOARDS. 

Var.  1. — Lieutenant  J—  — M.  D —  — ,  U.  S.  Navy,  a  member,  was  absent 
on  account  of  illness  (or  other  cause),  and,  as  the  court  was  reduced  below  the 
number  authorized  by  law,  it  adjourned  until  10  a.  m.  to-morrow,  Saturday. 

Var.  2. — The  court,  being  reduced  below  the  number  authorized  by  law,  in- 
formed the  convening  authority  to  that  effect,  and  then  took  a  recess  until 
11.30  a.  m.  the  same  date,  when  it  reconvened.  Present :  Lieutenant  A —  —  B. 
K—  — ,  U.  .S.  Navy ;  First  Lieutenant  G—  -  B.  W—  — ,  U.  S.  Marine 
Corps,  members,  the  recorder ;  and  Ensign  T—  -  S —  — r  U.  S.  Navy,  ap- 
pointed a  member  by  the  convening  authority,  vice  Lieutenant  J —  —  M. 
D ,  U.  S.  Navy,  relieved. 

The  accused  entered  and  stated  that  he  did  not  wish  counsel. 

ft*  -Wot  S8 

Var.  1. entered  and  requested  that  Ensign  L —  -  N —  — ,  U.  S. 

Navy,  act  as  his  counsel.  (Ensign  N —  —  entered.) 

Var.  2. — The  accused  was  informed  that  his  request  to  have  Ensign  L 

N act  as  his  counsel  was  not  approved  for  the  reason  that  (give  reason)  • 

he  then  requested  that  Lieutenant  O —  —  P —  — ,  U.  S.  Navy,  act  as  his  coun- 
sel. Lieutenant  P entered.  Or,  He  thereupon  requested  that  counsel 

be  detailed  for  him,  and  the  court  so  notified  the  convening  authority  and  took 
a  recess  until  1  p.  m.  the  same  date,  when  it  reconvened.  Present:  Ail  the 

members,,  the  recorder,  and  the  accused.  Ensign ,  having  been  detailed 

as  counsel  for  accused,  reported  as  such. 

4«4 

rrvi  T  i    ,,  ,     /          ^  -i-n        A'  n  i>\  •     •         i 

The  recorder  read  the  precept  (and  modifications  thereof),  original 
hereto  prefixed,  marked  ."A." 

Var.  1. original  prefixed  to  the  record  in  the  case  of  M 

R.  S ,  private,  U.  S.  Marine  Corps. 

Var.   2. and   an  order   relating  thereto,   prefixed   hereto,   marked 

<( 5> 

409 

The  accused  stated  that  he  did  not  object  to  any  member. 

Var. — See  variations  under  general  court-martial,  p.  345.  ,  V\  • 

427;  277  to  282 

Each  member  and  the  recorder  were  duly  sworn. 

428  to  431 

The  accused  stated  that  he  had  received  a  copy  of  the  specifica- 
tion^) preferred  against  him  on  July  — ,  19—. 

For— See  variations  under  general  court-martial,  p.  346. 
j         // 

410 

O       T  T  J 

The  recorder  asked  the  accused  if  he  had  any  objection  to  make 
to  the  specification  (s). 


PROCEDURE  FOR  COURTS  AND  BOARDS.  391 

The  accused  replied  in  the  negative. 

Var. — See  variations  under  general  court-martial,  p.  346. 

414;  235 

The  court  was  cleared. 

258 

The  court  was  opened.  All  parties  to  the  trial  entered,  and  the 
senior  member  announced  that  the  court  found  the  specification  (s) 
in  due  form  and  technically  correct. 

Var. — See  variations  under  general  court-martial,  pp.  346-347. 

414;  235 
The  accused  stated  that  he  was  ready  for  trial. 

410 
Var. — See  variation  under  general  court-martial,  p.  347. 

432 
No  witnesses  not  otherwise  connected  with  the  trial  were  present. 

140 

Var. — See  variations  under  general  court-martial,  p.  347. 
The  recorder  read  the  specification  (s),  original  prefixed,  marked 
" ,"  and  arraigned  the  accused  as  follows: 

.-q f       404 

Q.  J Z.  S —     — ,  seaman,  U.  S.  Navy,  you  have  heard  the 

specification  preferred  against  you ;  how  say  you  to  the  specification, 
guilty  or  not  quilty? 

A.  Not  guilty   (guilty)    (guilty  except  as  to  the  words  "  — 

— ,"  to  which  words,  not  guilty)    (the  accused 
stood  mute). 

Var.  1. — Q. ,  you  have  heard  the  specifications  preferred  against  you; 

how  say  you  to  the  first  specification,  guilty  or  not  guilty? 
A.     *     *     * 

Q.  To  the  second  specification,  guilty  or  not  guilty? 
A.     *     *     * 

436;  301  to  310 

Var.  2. — When  accused  makes  a  preliminary  motion  before  pleading  to  the 
issue. — See  variation  under  general  court-martial,  p.  348. 

435;  294  to  300 


392  PROCEDURE   FOR  COURTS  AND  BOARDS. 

When  applicable  to  the  plea. — The  accused  was  duly  warned  as  to 
the  effect  of  his  plea  and  persisted  therein  (or,  withdrew  his  plea  of 
guilty  and  substituted  therefor  a  plea  of  not  guilty). 

306  to  308 

Var. — When  applicable  to  the  plea. — The  court  was  cleared.  The  court  was 
opened.  All  parties  to  the  trial  entered,  and  the  senior  member  announced 
that  the  court  decided  to  reject  the  plea  of  the  accused,  who  was  advised  by 
the  recorder  to  withdraw  his  former  plea  and  substitute  therefor  a  plea  of 
not  guilty.  The  accused  declined  to  change  his  plea  and  the  recorder  was 
directed  by  the  court  to  proceed  as  though  a  plea  of  not  guilty  had  been  entered. 

310 

The  prosecution  began. 

205 

Var. — The  prosecution  offered  no  evidence. 

A  witness  for  the  prosecution  entered  and  was  duly  sworn. 

430 

Var. — A  member  (recorder)  was  called  as  a  witness  for  the  prosecution  and 
was  duly  sworn. 

. 

139 

Examined  by  the  recorder : 

1.  Q.  State  your  name,  rate  (rank),  and  present  station. 
A.  John  W.  /Smith,  boatswain's  mate,  second  class,  U.  S.  Navy, 
stationed  on  the  U.  S.  S.  Wyoming. 

Var. —  (In  case  of  a  civilian  witness): 

1.  Q.  State  your  name,  residence,  and  occupation. 

2.  Q.  If  you  recognize  the  accused,  state  as  whom. 

A.  I  recognize  him  as  J—  -  Z.  S —  — ,  seaman,  U.  S.  Navy, 
stationed  on  the  U.  S.  S.  Wyoming. 

143 

. 
o   n     *    *    * 

6.   ^J. 

A.    *    *    *. 

142 

Cross-examined  by  the  accused  (counsel) : 
» 

151 


PROCEDURE  FOR  COURTS  AND  BOARDS.  393 

7.  Q.    *    *    *. 
^     *    *    * 

(See  further  steps  in  examination  of  witness  under  general  court- 
martial,  p.  350.) 

141 

Neither  the  recorder,  the  accused,  nor  the  court  desired  further  to 
examine  this  witness. 

154 

The  witness  verified  his  testimony  (was  duly  warned)  and  with- 
drew. 

175  to  177;  140 

Var. — See  variations  under  general  court-martial,  p.  351. 

A  witness  for  the  prosecution  entered  and  was  duly  sworn. 

Examined  by  the  recorder: 

1.  Q.  State  your  name,  rank,  and  present  station. 

A.  J—       -  A.  R—      — ,  lieutenant,  U.  S.  Navy,  stationed  on  the 
U.  S.  S.  Wyoming. 

2.  Q.  As  whom  do  you  recognize  the  accused  ? 
A.  As  J—       —  Z.  S —     — ,  seaman,  U.  S.  Navy. 

3.  Q.     *     *     * 
A     *     *     * 

Neither  the  accused  nor  the  court  desired  to  question  this  witness. 

154 

The  witness  verified  his  testimony  (was  duly  warned)   and  with- 
drew. 

*     *     * 

The  prosecution  rested.      (Provided'  the  prosecution  has  offered 
evidence. ) 

The  defense  began. 

205 

Var. — The  accused  did  not  desire  to  offer  any  evidence  in  his  defense  or  to 
make  a  statement   (see  variations,  p.  395). 

A  witness  for  the  defense  entered  and  was  duly  sworn. 
Examined  by  the  recorder : 

143 

1.  Q.  State  your  name  and  rank. 

A.  M-       -  G.  R-     -,  lieutenant,  U.  S.  Navy. 

2.  Q.  As  whom  do  you  recognize  the  accused? 

A.  As  J—       -  Z.  S ,  seaman,  U.  S.  Navy. 

Examined  by  the  accused  (counsel)  : 

142 


394  PROCEDURE   FOR  COURTS  AXD  BOARDS. 

3.  Q.  *     *     * 
A.  *     *     * 

(See  further  steps  in  examination  of  witness  for  defence  under  gen- 
eral court-martial,  p.  355.) 

141 

Var. — In  case  of  contempt. — The  law  is  not  construed  as  extending  the  au- 
thority to  punish  for  contempt  to  a  summary  court-martial  or  deck  court  (see 
art.  42,  A.  G.  N.,  and  act  of  Feb.  -16,  1909,  quoted  thereunder).  In  case  of  con- 
tempt, therefore,  the  court  shall  report  the  facts  to  the  convening  authority  for 
such  further  action  as  the  latter  may  deem  appropriate. 


170  to  172 


*     *     * 

The  accused  was,  at  his  own  request,  duly  sworn  as  a  witness  in 
his  own  behalf. 

138 

Examined  by  the  recorder:. 

1.  Q.  Are  you  the  accused  in  this  case? 
A.  *    *    * 

Examined  by  the  accused  (counsel)  : 

2.  Q.  State  the  facts  concerning  the  offense  with  which  you  are 
charged. 

A-*    *    * 

3.  Q.  *    *    * 

A       *       *       * 

161 


The  defense  rested.     (Provided  the  defense  has  offered  evidence.) 

205 
The  rebuttal  oegan.     (In  case  there  is  a  rebuttal.) 

206 

A  witness  for  the  prosecution  in  rebuttal  entered  and  was  duly 
sworn. 

Examined  by  the  recorder: 

1.  Q.  State  your  name,  rate,  and  present  station. 
A.  J R.  G ,  seaman,  U.  S.  Navy. 

2.  Q.  As  whom  do  you  recognize  the  accused? 

A.    *     *    * 

*    *    * 

The  rebuttal  ended. 


PROCEDURE  FOR  COURTS  AND  BOARDS. 

The  surrebuttal  began.     (In  case  there  is  a  surrebuttal.) 

207 

Lieutenant  M—  -  G.  K ,  U.  S.  Navy,  a  witness  for  the 

defense,  was  recalled  as  a  witness  for  the  defense  in  surrebuttal,  and 
warned  that  the  oath  previously  taken  by  him  was  still  binding. 

Examined  by  the  accused  (counsel) : 

1    O      *     *     * 

A         *       *       * 


The  surebuttal  ended. 

The  accused  did  not  desire  to  make  a  statement. 

438;  311 

Var.  1. — The   accused    (counsel)    made   an   oral   statement    (argument)    as 
follows : 

313  to  315 


Var.  2. — The  accused  made  an  oral  statement,  the  substance  of  which  is 

^iliJiuj* 


appended,  marked  "  Exhibit  No.  — ." 


316 

Var.  S. .  The  court  was  cleared.  The  court  was  opened,  and  the 

senior  member  announced  that  the  court  considered  the  statement  of  the 
accused  to  be  inconsistent  with  his  plea  of  "  Guilty."  The  conflicting  plea 
and  statement  were  brought  to  the  attention  of  the  accused. 

The  accused  adhered  to  the  facts  set  forth  in  his  statement. 

The  court  directed  the  recorder  to  proceed  with  the  trial  as  if  the  plea  of 
not  guilty  had  been  entered. 

310;  312 

The  trial  was  finished.     £gg  ;a£(  j&£ 

The  court  was  cleared. 

The  recorder  was  recalled  and  directed  to  record  the  following 
finding (s) : 

"The  specification  proved." 

Var.  1. — "  The  first  specification  proved." 

Var.  2. — " proved  by  plea." 

Var.  3. — " —  -  not  proved,  and  the  court  does,  therefore,  acquit  him,  the 
said  J —  —  Z.  S —  — ,  seaman,  United  States  Navy,  of  the  offense  specified." 

Var.  Jh — "  —  -  proved  in  part;  proved  except  the  words  « ,'  which 

words  are  not  proved  (and  for  the  excepted  words  the  court  substitutes  the 
words  '—  — .'  which  words  are  proved)." 

439;  318  to  325 

The  recorder  stated  that  he  had  (no)  record  of  previous  convic- 
tions, and  that  the  pay  of  the  accused  is  $ a  month.  . 

440;  326 

26450°— 17 26 


396  PROCEDURE   FOR   COURT*    A$ffi    "HOARDS. 

(In  case  there  is  any  record  of  previous  convictions) : 

The  court  was  opened,  and  alj,-.garties  to  the  trial  entered.     The 

senior  member  announced  that  the  court  was  ready  to  receive  any 

record  of  previous  conviction^.  - 

Such  record  having  been  submitted  to  the  accused  and  there  being 

no  objection,  the  recorder  read  from  the  current  service  record  of  the 

accused  an  extract  showing  previous  conviction(s),  copy  appended, 

marked  "  Exhibit  No.  — ." 

Far. — See  variation  under  general  court-martial,  p.  360. 

326  to  334 
.tf!9m'*j.  nil 

The  court  was  cleared. 

The  recorder  was  recalled  and  directed  to  record  the  sentence  of 
the  court  as  follows: 

"The  court,  therefore,  sentences  him,  J Z.  S—  — ,  sea- 
man, U.  S.  Navy,  to  solitary  confinement  on  bread  and  water  for 
eight  (8)  days,  with  full  ration  every  third  (3d)  day,  and  to  lose 
pay  amounting  to  thirty  (30)  dollars." 

A-        -  R.  K-     — , 

-:?f  nr/oo  ^ieutenant^  U.  8.  %<&&  Senior  Member. 

J M.  D , 

".vjfh.ro  M           Lieutenant,  U.  S.  Navy,  Member. 
G— B.  W -, 

lo  jwlq  erf*  li  BB'^M&M^&^I  ILS'  M  wine  Corps,  Member. 

J— —          H.  ix  , 

Qfp  .c\$nsign,  U.  S.  Navy.  Recorder. 

\x  I O    ,  UJLO  Y       '  "' 


441  to  452;  336;  354  to 

In  consideration  of  his  previous  good  record  (or  whatever  the 
reason  may  be  upon  which  the  recommendation  is  based) ,  we  recom- 
mend    , ,  U.  S.  Navy,  to  the  clemency  of  the  re- 
viewing authority. 

T -\r    Y) 

Lieutenant,  U.  ^™y,  Member. 


First  Lieutenant,  U.  S.  Marine  Corps,  Member. 
453;, 


The  court  was  opened  and  proceeded  with  the  trial  of'  -3iU 

—  r—    U*  S.  -  . 


8S8  ; 


PROCEDURE  FOR  COURTS  AND  BOARDS. 


Var.  1. — The  court  then  adjourned  to  await  orders  from  the  convening  au- 
thority. 

Var.  2. adjourned  to  meet . 

-p       -rr- 

Xi.    IV  , 

Lieutenant,  U.  S.  Navy,  Senior  Member. 
j jj^  j^ 

Ensign,  U.  8.  Navy,  Recorder. 


454;  365 


From  an  examination  of  J- 


U.  S.  S.  WYOMING, 
Hampton  Roads,  Va.,  July  — ,  19 — . 
Z.  S. ,  seaman,  U.  S.  Navy, 


and  of  the  place  where  he  is  to  be  confined,  I  am  of  the  opinion  that 
the  execution  of  the  above  sentence  would  (not)  produce  serious  in- 
jury to  his  health. 

Surgeon,  U.  S.  Navy,  Senior  Medical  Officer  on  Board. 
454;  364 


ACTION  OF  CONVENING  AUTHORITY  ON  THE  RECORD. 

U.  S.  S.  WYOMING, 
Hampton  Roads,  Va.,  July  — ,  19 — . 
The  proceedings,  finding  (s),  and  sentence  in  the  foregoing  case 

of  J Z.  S ,  seaman,  U.-  S.  Navy,  are  approved. 

D B.  W , 

Captain,  U.  S.  Navy,  Commanding  U.  S.  S.  Wyoming  • 

(and  Senior  Officer  Present). 


Commanding 


Colonel,  U.  S.  Marine  Corps, 
-  Regiment,  U.  S.  Marine  Corps 
(and  Senior  Officer  Present). 


458;  459 


seaman,   U.   S.   Navy, 
—  months.    During 


Var.  1. — The  service  record  of  J Z.    S 

shows  that  he  has  served  in  the  Navy years  and 

his  current  enlistment,  beginning  March  — ,  19 — ,  he  has  committed  the  fol- 
lowing offenses :  March  — ,  19 — ,  forty-eight  hours  over  liberty ;  May  — ,  19 — , 
clothes  in  lucky  bag ;  June  18,  19 — ,  absent  from  quarters ;  July  — ,  19 — ,  shirk- 
ing. (During  his  current  enlistment,  beginning  -  — ,  he  has  committed  no 
offense  prior  to  the  one  for  which  he  has  been  tried  in  this  case. ) 

The  proceedings,  finding  (s),  and  in  view  of  the  above,  the  sentence  in  the 
foregoing  case  are  approved  (or  as  the  case  may  be). 


398  PROCEDURE   FOR  COURTS  AND  BOARDS. 

Var.  2. — The  proceedings,  finding (s),  and  sentence  in  the  foregoing  case 
of  -  -  are  approved.  That  part  of  the  sentence  which  involves  a 

bad  conduct  discharge  is  remitted  on  condition  that during  a 

period  of  six  months  (if  three  months'  loss  of  pay  has  been  adjudged)  conducts 
himself  in  such  a  manner  as  in  the  opinion  of  his  commanding  officer  warrants 
his  further  retention  in  the  service;  otherwise  he  is  to  be  discharged  with  a 
bad-conduct  discharge  at  the  discretion  of  his  commanding  officer  at  any  time 
during  said  period.  The  loss  of  pay  adjudged  is  remitted  subject  to  the  con- 
ditions specified  in  article  1-4893,  Naval  Instructions,  1913. 

Var.   3. — The  proceedings,   finding  (s),  and  sentence   in  the  foregoing  case 

of  J —      -  Z.  S ,  seaman,  U.  S.  Navy,  are  approved,  but  the  period  of 

confinement  is  reduced  to  days.     ( but  in  view  of  the  recom- 
mendation to  clemency,  the  loss  of  pay  is  reduced  to  —       —  dollars.)     (— 
but  in  view  of  the  opinion  of  the  medical  officer,  recorded  above,  the  solitary 
confinement  is  remitted  and  the  accused  will  be  released  from  confinement  and 
restored  to  duty.)      ( —      -  but  the  loss  of  pay  is  remitted.) 

Var.  4. — The  proceedings  and  finding  (s)  in  the  foregoing  case  of  J Z. 

S ,  seaman,  U.  S.  Navy,  are  approved.    The  sentence  is  disapproved  (state 

reason).    The  accused  will  be  released  from  confinement  and  restored  to  duty. 

Var.  5. — The  proceedings,  finding  (s),  and  sentence  in  the  foregoing  case 
of , ,  U.  S.  Navy,  are  disapproved  (state  reasons). 

Var.  6. — The  proceedings,  finding  (s),  and  acquittal  in  the  foregoing  case 

of , ,  TJ.  S.  Navy,  are  approved.    He  will  be  released  from 

confinement  and  restored  to  duty. 

Var.  7. — The  proceedings  in  the  foregoing  case  of  ,  , 

U.  S.  Navy,  are  approved.  The  finding  (s)  and  acquittal  are  disapproved.  He 
will  be  released  from  confinement  and  restored  to  duty. 

ro.guiu*  t0462 

Revision  of  Record. — //,  in  the  opinion  of  the  convening  authority,  it  is  neces- 
sary to  return  the  record  to  the  court  for  revision,  he  shall  take  such  action 
prior  to  his  final  action  thereon.  See  form  under  general  courts-martial, 
pp.  363-365. 

456  to  457 

ACTION    OF   THE    REVIEWING   AUTHORITY". 

(When  convening  authority  is  not  senior  officer  present.) 

459 

U.  S.  S.  WYOMING, 
Hampton  Roads,  Va.,  July  — ,  19 — . 
The  proceedings,  finding  (s),  and  sentence  in  the  foregoing  case 
of ,  seaman,  U.  S.  Navy,  are  approved. 

Var.  1. — The  proceedings,  finding  (s),  and  sentence,  as  mitigated,  in  the  fore- 
going case  of , , ,  are  approved. 

Var.  2. — The  proceedings  and  finding  (s)  in  the  foregoing  case  of , 

,  ,  are  approved.  The  sentence  is  disapproved  (for  the  reason 

that  ).  (The  sentence  is  approved,  but  the  loss  of  pay  is  remitted.) 


PROCEDURE  FOR  COURTS  AND  BOARDS.  399 

(The  sentence  is  approved,  but  the  period  of  confinement  is  reduced  to  - 
days)  (or  as  the  case  may  be.) 


Captain,  U.  S.  Navy,  Commanding  U.  S.  S.  —      — , 

Immediate  Superior  in  Command. 


3 

Rear  Admiral,  U.  8.  Navy, 
Commander  Battleship  Division  — ,  Z7.  S.  Atlantic  Fleet, 

Immediate  Superior  in  Command. 


Brigadier  General,  U.  S.  Marine  Corps, 
Commanding  —  Brigade,  U.  S.  Marine  Corps, 

Immediate  Superior  in  Command. 

459  to  462 

Published. 

Commander,  U.  S.  Navy, .Executive  Officer. 
Loss  of  pay,  $ —  -  checked. 

Paymaster,  U.  S.  Navy. 

Var. — Loss  of  pay,  $- ,  will  be  deducted  in  accordance  with  article  4893, 

U.  S.  Naval  Instructions,  1913. 

464 


III. 
DECK  COURTS. 

(Chapter  XII— Part  I.) 


401 


.Ill 


.1  j-i<;: 


DECK  COTJETS. 


EECOKD  OF  DECK  COUET  NO.  --  . 

(New  series  each  calendar  year.) 
C  -  ,  A  -  B,  seaman,  U.  S.  Navy. 

(Name  of  accused,  surname  first.) 

Lieutenant  D  -  E.  F  -  ,  U.  S.  Navy,  is  hereby  ordered  as 
a  deck  court  to  try  the  above-named  man  for  the  following  offense  : 

Var.  —  In  case  the  commanding  officer  is  the  deck  court:  Trial  of  the  above- 
named  man  for  the  following  offense: 

468  to  469 

Specification:  In  that  A  -  B.  C  -  ,  seaman,  U.  S.  Navy, 
having  been  granted  liberty  on  March  25,  1917,  until  10  a.  m.,  March 
26,  1917,  did,  upon  the  expiration  of  said  liberty,  fail  to  return  to 
his  ship  and  did  remain  absent  from  his  station  and  duty  without 
leave  until  10  p.  m.,  March  26,  1917. 

• 

470  to  471 

fr 

R  -  A.  V  -  ,  yeoman  second  class,  U.  S.  Navy,  will  act  as 
recorder. 

474 

~ 


Commander,  U.  S,  Navy,  Comdg, 
467 


I  consent  to  trial  by  deck  court  as  above. 

'Seaman,  U.  S.  Navy. 
476 

Date  of  present  enlistment,  -       —  .    Pay  per  month,  $  --  . 
Record  of  previous  convictions  :  Oct.  16,  1916,  disorderly  conduct, 
S.  c.  m.,  sentence:  S.  c.,  b.  w.,  5  d.;  1.  p.  $12.      App'd.  by  con.  auth. 

403 


404  PROCEDURE  FOR  COURTS  AND  BOARDS. 

Oct.  18,  1916;  by  Im.  sup.  in  com.  Oct.  19,  1916.     (Or,  app'd.  by  con. 
auth.  and  S.  O.  P.  Oct.  18,  1916.) 

Var.  —  None. 

483;  327  to  330 
Witnesses:  (When  record  of  previous  convictions  is  objected  to.) 

332 

U.  S.  S.  -  ,  March  28,  19l7Mr>  /n,h,  -TO  (TJ] 
(  472;  473;  475;  478 

The  accused  was  arraigned  and  pleaded  as  follows:  Not  guilty 
\  guilty  )  . 

481 

The  following  witnesses  appeared  for  the  prosecution  : 
The  following  witnesses  appeared  for  the  defense: 

479;  481 

In  case  of  contempt.  —  See  variation  under  summary  court-martial,  p.  394. 
Finding:  "The  specification  proved  (proved  by  plea)." 

Far.—  "The  specification  not  proved  and  the  court  acquits  the  said  - 

of  the  offense  specified." 

toil&te  am  *flo    ,OQ  DID  bfLfi  qina 


Sentence:  To  lose  pay  amounting  to  sixteen  dollars  and  thirty 
cents  ($16.30). 

Previous  convictions  considered  (if  any  have  leen  considered  in 
adjudging  sentence.) 


483  to  485 


m 

'*  .^  ,t&\    fsfartf"^  ^  &  ^^»  ^^ ^o^- 

(TFA^re  convening  authority  does  not  act  at  deck  court.) 

469 

-Iri  .9Tod«  ft«  .1  ^b  vd  Ii<:  )Bnoo  I 

>r  A^TI  sentence  wvolves  solitary  confinement  on  dwiinished  rations, 

or  on  bread  and  water,  for  more  than  10  days. — Having  examined 
accused  and  place  of  his  confinement,  I  am  of  opinion  that  execu- 
tion of  sentence  would  (not)  produce  serious  injury  to  his  health. 


!   .  •Jr>(  )  :  ' 

.dim  Surffeon,  U.S.  Navy. 

490;  364 


PROCEDURE  FOR  COURTS  AND  BOARDS.  405 

The  sentence  is  approved  and  the  accused  informed  this  day  (date 
inserted  here  unless  same  as  previously  recorded).  (That  portion 
of  the  sentence  involving  loss  of  pay  is  remitted  subject  to  the  con- 
ditions specified  in  art.  4893,  Naval  Instructions.) 

J J.  K , 


Commander,  U.  S.  Navy,  Comdg. 

486  to  487 

Var. — Where  convening  authority  acts  as  deck  court. — The  accused  informed 
this  day  (date  inserted  here  unless  same  as  previously  recorded).  (That  por- 
tion of  the  sentence  involving  loss  of  pay  is  remitted  subject  to  the  conditions 
specified  in  art.  4893,  Naval  Instructions.) 


Lieutenant,  U.  S.  Navy,  Comdg., 

The  only  officer  of  the  required  rank  attached  to  the  vessel 
(command). 

? 

Ensign,  U.  S.  Navy,  Comdg., 
The  only  officer  attached  to-  the  vessel  (command). 


Lieutenant  (j.  g.),  U.  S.  Navy,  Comdg., 

The  only  officer  attached  to  the  vessel  (command)  authorized  to 
act  as  deck  court  officer. 

469;  486  to  487 

Loss  of  pay,  $ checked. 

Var. — Loss  of  pay,  $ ,  will  be  deducted  In  article  4898,  Naval  Instruc- 
tions. 


491;  464 


Ij  \ 

. 

— 

- 


•KK| 


in.i 


• 


, 


; 


IV. 
COURTS  OF  INQUIRY. 

(Chapter  XIII— Part  I.) 


407 


• 
^I  10  8THUOO 

.1  tofi'I — Illy 


COURTS  OF  INQUIRY. 


RECORD  OF  PROCEEDINGS 

OF  A 

COURT  OF  INQUIRY 

CONVENED  AT 
I 

THE  NAVY  YARD,  NEW  YORK, 

. 

BY  ORDER  OF 

THE  SECRETARY  OF  THE  NAVY. 

' 
Var. — Convened  on  board  the  U.  S.  S.  -      — ,  by  order  of  the  commander  in 

chief,  U.  S.  Atlantic  Fleet  (commander,  cruiser  force,  U.  S.  Atlantic  Fleet). 

498 

' 

TO  INQUIRE  INTO  -  — . 

494  to  497 
AUGUST  15,  19 — . 

82  to  92;  541  to  542 

Precept :  See  forms,  pp.  417-420. 

80c539 

FIRST   DAY. 

NAVY  YARD,  NEW  YORK, 

Var.—U.  S.  S. ,  OFF , 

Friday,  August  15,  19—. 
The  court  met  at  10  a.  m. 

516 

Present : 

Captain  A-       -  B.  C—     - ,  U.  S.  Navy, 

Commander  D—       -  E.  F ,  U.  S.  Navy,  and 

409 


410  PROCEDURE  FOR  COURTS  AND  BOARDS. 

Commander  G—     —  H.  K—     — ,  U.  S.  Navy,  members ;  and 
Lieutenant  L—       -  N—      — ,  U.  S.  Navy,  judge  advocate. 

499  to  501 

Var. — Absent:  Commander  G H.  K ,  U.  S.  Navy,  member.  The 

judge  advocate  read  a  medical  certificate,  appended,  marked  "  —  — ,"  account- 
ing for  the  absence  of  Commander  K (was  unable  to  account  for  his 

absence,  or  as  the  case  may  be). 

The  court  addressed  a  letter  to  the  convening  authority,  copy  appended, 

marked  " ,"  and  then,  at  —  a.  m.,  took  a  recess  until  —  p.  m.  (or,  the 

court  then,  at  —  a.  m.,  adjourned  until  —  a.  m.,  to-morrow,  Saturday,  to  await 
the  arrival  of  the  absent  member). 

501 

The  judge  advocate  introduced  F E.  D as  stenog- 
rapher (clerk),  stating  the  authority  whereby  he  was  appointed  as 
such. 

514 

The  court  was  closed  and  the  judge  advocate  read  the  precept 

(and  modifications  thereof)  original  (s)  prefixed,  marked  " " 

(and« »). 

518;  520 

All  matters  preliminary  to  the  inquiry  having  been  determined,  and 
the  court  having  decided  to  sit  with  open  doors,  the  court  was  opened. 

Var. the  court  announced  that,  in  obedience  to  orders  of  the  con- 
vening authority,  it  would  sit  with  closed  doors.  (The  court  decided  to  sit 
with  closed  doors.) 

519 

Commander  C P.  Q ,  U.  S.  Navy,  commanding  the 

U.  S.  S. ,  a  defendant,  entered,  and,  with  the  permission  of 

the  court,  introduced  Lieutenant  R S.  T ,  U.  S.  Navy, 

as  his  counsel. 

507  to  508 

Var.   1. — Commander   L^ M — ,    U.    S.    Navy,    Lieutenant   N — 

O —  — ,  U.  S.  Navy,  and  Ensign  P —  -  Q —  — ,  U.  S.  Navy,  entered  as 
interested  parties. 

Var.   2. — The  court   received   from   ,    an   interested  party,    a 

communication,  which  was  read  and  appended,  marked  " ,"  stating  that 

he  was  unable  to  be  present,  owing  to  .      (Give  reason;  if  illness,  a 

medical  certificate  must  be  presented,  read,  and  appended.  This  communication 
may  be  made  personally  by  any  competent  person.) 

The  court  then,  at  —  p.  m.,  adjourned  until  —  a.  m.  to-morrow,  Saturday. 


PROCEDURE  FOR  COUNTS  AND  BOARDS.  411 

Var.  8. ,  an  interested  party,  entered  and  stated  that  lie  did 

not  wish  counsel  (that  he  waived  his  right  to  be  present  at  the  inquiry,  and 
thereupon  withdrew). 

Var.  4. —  — ,  an  interested  party,  entered  and  asked  permission  to 

introduce  Lieutenant  U V.  W ,  U.  S.  Navy,  as  counsel.  At  the 

request  of  a  member  (the  judge  advocate),  the  court  was  cleared.  The  court 

was  opened. entered  and  was  informed  that,  while  he  was  at 

liberty  to  designate  some  other  person,  his  request  to  have  Lieutenant  U 

V.  W—  — ,  U.  S.  Navy,  act  as  his  counsel  was  not  approved  for  the  reason 
that  ((/ive  reason). 

Var.  5. — The  complainant,  Captain  X —  -  Y.  Z ,  U.  S.  Navy,  entered. 

With  the  permission  of  the  court,  the  complainant  introduced  Major  B C. 

D ,  U.  S.  Marine  Corps,  as  his  counsel. 

506  to  510 
The  judge  advocate  read  the  precept. 

521 

The  defendant  (interested  party)  (and  the  complainant )  stated 
that  he  (they)  did  not  object  to  any  member. 

1)1  case  of  challenge. — See  procedure  under  general  court-martial,  p.  345. 

502;  523 

Each  member,  the  judge  advocate,  and  the  stenographer  (clerk) 
(interpreter)  were  duly  sworn. 

528  to  532 

//  postponement  be  requested. — The  defendant  (interested  party)  (com- 
plainant) (judge  advocate)  applied  for  a  postponement  of  the  inquiry  on  the 
ground  (give  reasons).  The  court  was  cleared.  The  court  was  opened,  and  the 
president  announced  that  the  inquiry  would  be  postponed  until  -  -  (that  the 
inquiry  would  proceed)  ( —  -  that  it  would  await  the  action  of  the  conven- 
ing authority,  who  was  informed,  that  the  defendant  (or  as  the  case  may  be) 
desired  a  postponement  of  the  inquiry 'until for  the  reason  (give  reason). 

517 

No  witnesses  not  otherwise  connected  with  the  inquiry  were 
present. 

Var.  1. — In  accordance  with  the  direction  of  the  court,  all  witnesses  not 
otherwise  connected  with  the  inquiry  withdrew. 

Var.  2. — The  court  then,  at  -  -  a.  m.,  took  a  recess  until  —  p.  m.,  when  it 

reconvened  on  board  the  U.  S.  S.  .  Present :  All  the  members  and.  the 

parties  to  the  inquiry. 

All  the  (surviving)  officers  and  men  of  the  U.  S.  S.  —  -  were  mustered  on 
the  quarter  deck  of  that  vessel.  The  president  explained  the  purpose  of  the 
court  and  the  rights  of  all  persons  concerned,  and  duly  administered  to  them 

the  oath  of  witnesses  (except  to  -  -  and ,  who  were  absent  from  the 

vessel.  ((Jive  reason.)) 

26450°— 17 27 


412  PROCEDURE   FOR   COURTS  AND  BOARDS. 

The  official  report  of  Commander  L M ,  U.  S.  Navy,  containing 

the  narrative  of  the  grounding  (loss)  of  the  U.  S.  S.  on  August , 

19 — ,  was  then  read  by  the  judge  advocate,  original  hereto  appended,  marked 


The  following  questions  were  then  put  to  the  commanding  officer  by  the 
court : 

Q.  Is  the  narrative  just  read  to  the  court  a  true  statement  of  the  grounding 
(loss)  of  the  U.  S.  S. ,  on  August ,  19—? 

A.  *     *     * 

Q.  Have  you  any  complaint  to  make  against  any  of  the  officers  or  men  of 
that  vessel  on  that  occasion? 

A.  *     *     * 

The  following  questions  were  then  put  by  the  court  to  the  (surviving)  officers 

and  crew  of  the  U.  S.  S. ,  and  they  were  instructed  by  the  president  that 

if  they  had  anything  to  say  in  answer  to  the  questions  propounded,  they  should 
step  to  the  front. 

Q.  Have  you  any  objection  to  make  to  the  narrative  just  read,  or  anything 
to  lay  to  the  charge  of  any  officer  or  man  concerning  the  grounding  (loss)  of 
the  U.  S.  S. ,  on  August  — ,  19 — ? 

A.  The  officers  and  men  answered  "No,"  and  no  one  stepped  to  the  front 
(or  as  the  case  may  be). 

All  the  officers  and  such  of  the  crew  as  filled  positions  of  special  responsi- 
bility on  the  occasion  referred  to  were  informed  by  the  president  of  their 
status  as  interested  parties  and  of  their  right  to  be  present  during  the  sessions 
of  the  court,  to  offer  evidence,  and  to  cross-examine  witnesses,  should  they 
so  desire. 

The  court  then,  at  —  a.  m.,  took  a  recess  until  —  p.  in.,  at  which  time  it 
reconvened  at  the  navy  yard,  New  York  (or,  as  the  case  may  be). 

Present :  All  the  members  and  the  parties  to  the  inquiry. 

554  to  555 

Lieutenant  C B.  A ,  U.  S.  Navy,  a  witness  called  by 

the  judge  advocate,  entered  and  was  duly  sworn. 

530 

Examined  bv  the  judge  advocate :  • 

1.  Q.     *     *r  * 
^     *     *     * 

Examined  by  the  complainant  (if  there  be  one) : 

20.  Q.     *     *     * 

A.     *     *     * 

Cross-examined  by ,  defendant  (interested  party)  (counsel) : 


506  to  508 


25.  Q.     *     *     * 
A.     *     *     * 


PROCEDURE  FOR  COURTS  AND  BOARDS.  413 

Reexamined  by  the  judge  advocate: 
40.  Q.     *     *     * 
A.     *     *     * 

Examined  by  the  court  :• 
52.  Q.     *     *     * 
A.     *     *     * 

None  of  the  parties  to  the  inquiry  desired  further  to  examine  this 
witness;  he  verified  his  testimony  (was  duly  warned)  and  withdrew. 

• 
154;  175  to  177 

The  court  then,  at  --  p.  m.,  adjourned  until  --a.  m.,  to-morrow 
(Saturday). 

SECOND  DAY. 

NAVY  YARD,  NEW  YORK, 
Saturday,  August  16,  19  —  . 

The  court  met  at  10  a.  m. 

Present:  All  the  members  and  the  parties  to  the  inquiry    (ex- 
cept-     -). 

The  record  of  proceedings  of  yesterday  (the  first  day  of  the  in- 
quiry) was  read  and  approved. 

Lieutenant  F  —       -  E.  B  --  ,  IT.  S.  Navy,  a  witness  called  by 
the  judge  advocate,  entered  and  was  duly  sworn. 

Examined  by  the  judge  advocate  : 

1.  Q.  *     *     * 


None  of  the  parties  to  the  inquiry  desired  further  to  examine  this 
witness;  he  verified  his  testimony  and  withdrew. 

Far.  1.  —  The  (surviving)  officers  and  men  of  the  U.  S.  S.  -  —  ,  who  were 
absent  yesterday,  were  called  before  the  court.  The  purpose  of  the  court  and 
their  rights  were  explained  to  them  and  they  were  duly  sworn.  The  same 
questions  were  asked  them  as  had  been  propounded  to  the  other  members  of 
the  crew  and  the  same  instructions  were  given  ;  no  one  had  anything  to  urge 
(or,  as  the  case  may  be). 

All  the  officers  and  such  of  the  crew  as  filled  positions  of  special  responsi- 
bility were  informed  of  their  status  as  interested  parties  and  of  their  right 
to  be  present  during  the  sessions  of  the  court,  to  offer  evidence,  and  to  cross- 
examine  witnesses  if  they  so  desire. 

Far.  2.  —  Lieutenant  G  --  H.  R  —  —  ,  U.  S.  Navy,  who  hud  been  directed 
to  work  up  the  dead  reckoning  of  the  U.  S.  S.  -  ,  was  called  as  a  witness 
and  duly  sworn. 

552 
• 

Far.  3.  —  The  court  was  cleared.  The  court  was  opened.  All  parties  to  the 
inquiry  entered,  and  the  president  announced  that  the  court  would  adjourn  to 
the  scene  of  the  accident  (explosion)  (fire)  (or  as  the  case  may  be). 

All  the  members  and  the  parties  to  the  inquiry  assembled  (at  such  place  as 
the  casualty  occurred),  and  made  an  inspection  of  -  . 


414  PEOCEDUBE   FOR   COURTS  AND  BOAEDS. 

P ,1.  W ,  chief  turret  captain,  U.  S.  Navy,  was  called  as  a  witness 

by  the  judge  advocate,  and  duly  sworn. 
Examined  by  the  judge  advocate :  etc. 


All  the  members  and  the  parties  to  the  inquiry  returned  to  -      — ,  where 
the  court  was  reassembled. 

516 

The  judge  advocate  stated  that  he  had  no  more  witnesses  to  call. 

Ensign  G F.  E —    — ,  U.   S.  Navy,  a  witness  called  by 

— ,  defendant  (interested  party),  entered  and  was  duly  sworn. 


513 

Examined  by  -       — ,  defendant  (interested  party). 
1.  Q.  *     *    '* 
A.  *     *     * 

Cross-examined  by  the  judge  advocate: 

8c\    *     *     * 
.  i^. 

A.  *    *     * 

Cross-examined  by  the  complainant : 

12.  Q.  *     *     * 

j^_    *     *     * 

Examined  by  the  court : 

16.  Q.  *     *     * 
^   *     *     * 

None  of  the  parties  to  the  inquiry  desired  further  to  examine  this 
witness ;  he  verified  his  testimony  and  withdrew. 

*     *     * 

Var.  1. — At  this  stage  of  the  proceedings  it  appeared  to  the  court  that  Lieu- 
tenant R —  —  S —  — ,  U.  S.  Navy,  was  an  interested  party.  He  was,  accord- 
ingly, called  before  the  court  and  advised  to  that  effect,  and  of  the  testimony 
that  seemed  to  implicate  him.  He  stated  that  he  did  not  object  to  any  member 
of  the  court  and  was  informed  of  his  right  to  be  present,  to  have  counsel,  to  offer 
evidence,  and  to  cross-examine  witnesses  if  he  so  desired. 

511  ,(r  FIA 

Var.  2.— At  this  stage  of  the  proceedings  it  appeared  to  the  court  that , 

an  interested  party,  became  a  defendant,  and  he  was  accordingly  informed  of 
this  change  in  status, 

507 

The  court  then,  at  —  a.  m.,  took  a  recess  until  —  p.  m.,  at  which 
time  it  reassembled. 

361 

• 

. 
. 


PROCEDURE  FOR  COURTS  AND  BOARDS.  415 

Present:  All  the  members  and  parties  to  the  inquiry. 

Commander .  I".  S.  Navy,  a  defendant,  requested  that  he  be 

sworn  as  a  witness.  His  request  was  granted  and  he  was  duly  sworn, 
having  been  informed  by  the  president  that  his  examination  would 
be  governed  by  the  same  rules  as  govern  the  examination  of  an 
accused  who  takes  the  stand  at  his  own  request  in  a  trial  by  court- 
martial. 

Examined  by  defendant  (counsel). 

- 

#  *  *  *  *  *  * 

Cross-examined  by  the  judge  advocate : 


Cross-examined  by  the  complainant  (counsel)  : 

*  ****** 

Examined  by  the  court: 

Var. — Commander  ,  an  interested  party,  requested  (was  called  upon) 

to  take  the  stand.  He  was  duly  sworn,  and  informed  by  the  president  of  his 
right  to  decline  to  answer  any  questions  which  may  tend  to  incriminate  him- 
self. 

Examined  by  ,  interested  party  (or  by  judge  advocate  or  court,  de- 
pending upon  whose  instance  witness  was  called)  : 

******* 

• 

512 

None  of  the  parties  to  the  inquiry  desired  further  to  examine  this 
witness;  he  verified  his  testimony  and  resumed  his  seat  as  defendant 
(interested  party). 

Neither  the  court,  the  judge  advocate,  nor  any  party  to  the  inquiry 
desired  to  call  any  more  witnesses. 

Commander  L -  M—  -  and  Lieutenant  R S , 

U.  S.  Navy,  each  submitted  a  written  statement,  which  statements 
were  read  and  are  appended,  marked  "  -  "  and  "  -  — ." 

512 

Var. — Counsel    for ,    an    interested    party,    made    the    following    oral 

argument:  —      — . 

The  judge  advocate  then  read  a  written  argument,  hereto  ap- 
pended, marked  "  —  — ." 

. 
Var. — The  judge  advocate  made  the  following  oral  argument : 

526 

The  inquiry  was  finished,  all  parties  thereto  withdrawing. 
The  court,  having  thoroughly  inquired  into  all  the  facts  and  cir- 
cumstances connected  with  the  allegations  contained  in  the  precept 


416  PROCEDURE   FOR  COURTS   AND    BOARDS. 

(loss  or  grounding  of  the  IT.  S.  8. )   (death  of )   (colli- 
sion between  the  II.  S.  S. and  the  Old  Dominion  Line  S.  S. 

— )   (fire  or  accident  or  explosion  on  board  the  IT.  S.  S. ), 

and  having  considered  the  evidence  adduced,  finds  as  follows : — 

527 

FACTS. 

(Here  state  the  facts  found  established,  and,  where  applicable, 
which  allegations  of  a  complaint  are  sustained  and  which  are  not 
sustained.) 

534;  536 

OPINION. 

(Here  state  opinion  as  required.  If  further  proceedings  are  recom- 
mended against  any  person,  state  what  proceedings  and  grounds 
therefor.) 

533;  535;  536 


MINORITY  REPORT. 

(Here  insert  minority  report  if  there  be  one.)  * 

537 

The  record  of  proceedings  of  this  second  day  of  the  inquiry  was 
read  and  approved,  the  court  being  closed  during  the  reading  of  so 
much  thereof  as  pertains  to  the  proceedings  in  closed  court,  and  the 
court  having  finished  the  inquiry,  then  at  — ,  adjourned  to  await  the 
action  of  the  convening  authority. 

5 

Captain,  U.  ,S.  Navy,  President. 


Lieutenant,  U.  S.  Navy,  Judge  Advocate. 

540 

In  case  of  revision: — 543. 

NAVY  DEPARTMENT, 
Washington,  August  — ,  19 — . 

The  findings,  opinion,  and  recommendation  of  the  court  of  inquiry 
in  the  foregoing  case  are  approved  (disapproved). 


Secretary  of  the  Navy, 
j    i  y 

Tar. — The  findings  and  recommendation  of  the  court  of  inquiry  in  the  fore- 
going case  are  approved.  The  department  does  not,  however,  deem  it  advisable 
to  bring to  trial  by  general  court-martial,  as  recommended  by  the 


PROCEDURE  FOR  COURTS  AND  BOARDS.  417 

court,  but  will  address  a  letter  to  him  admonishing  him  as  to  his  conduct  in  the 
matter  (or  as  the  case  may  be). 

544 

PRECEPT  FOR  COURT  OF  INQUIRY. 
( To  inquire  into  a  report  of  misconduct. ) 

494. 

NAVY  DEPARTMENT, 
Washington,  August  — ,  19 — . 

To:   Captain  A B ,   U.   S.  Navy,   navy   yard,   —  — ,   -      — ,  via 

commandant. 

Subject:   Court  of  inquiry  to  inquire  into  alleged  misconduct  by  Lieutenant 
X Y.  Z ,  U.  S.  Navy. 

1.  A  court  of  inquiry,  consisting  of  yourself  as  president,  and  of  Commander 

D —       -  E.    F ,    U.    S.   Navy,    and   Lieutenant   Commander   G H. 

I ,   U.   S.   Navy,  as  additional  members,   and  of  Lieutenant  J K. 

L ,  U.  S.  Navy,  as  judge  advocate,  is  hereby  ordered  to  convene  at  the 

navy  yard,  ,  ,  at  10  o'clock  a.  m.  on  Monday,  August  — ,  19 — ,  or 

as  soon  thereafter  as  practicable,  for  the  purpose  of  inquiring  into  certain  com- 
plaints made  by  Commander  R —      -  S —    — ,  U.  S.  Navy,  alleging  misconduct 
on  the  part  of  Lieutenant  X Y.  Z ,  U.  S.  Navy,  in  the  following- 
particulars:    (Here  state  clearly  and  concisely  the  allegations  to  be  inquired 
into.) 

2.  It  is  directed  that  the  court  notify  Commander  R S of  the 

time  and  place  of  meeting  of  the  court  and  that  he  will  be  a  party  to  the  inquiry 
in  the  status  of  complainant  and  will  be  afforded  the  rights  of  such  party  in 
accordance  with  the  provisions  of  Naval  Courts  and  Boards. 

3.  It  is  directed  that  the  court  notify  Lieutenant  X Y.  Z of  the 

time  and  place  of  meeting  and  that  he  will  be  a  party  to  the  inquiry  in  the 
status  of  defendant  and  will  be  afforded  the  rights  of  such  party  in  accordance 
with  the  provisions  of  Naval  Courts  and  Boards. 

4.  The  court  will  thoroughly  inquire  into  the  matter  hereby  submitted  to  it 
and  will  include  in  its  findings  a  full  statement  of  the  facts  it  may  deem  to  be 
established,  together  with  its  opinion  as  to  whether  further  proceedings  should 
be  had  in  the  matter.     If  further  proceedings  are  recommended  the  court  will 
comply  with  the  provisions  of  section  533,  Naval  Courts  and  Boards. 

5.  The  commandant  of  the  navy  yard,  -      — ,  -      — ,  is  hereby  directed  to 
furnish  the  necessary  clerical  assistance  for  the  purpose  of  assisting  the  judge 
advocate  in  recording  the  proceedings  of  this  court  of  inquiry. 


Secretary  of  the  Navy. 
503. 

PRECEPT  FOR  A  COURT  OF  INQUIRY. 

(To  inquire  into  the  circumstances  attending  a  death.) 
496. 


418  PROCEDURE  FOR  COURTS  AND  BOARDS. 


N.\VY     I  M.l'AKTMKXT, 

Aiif/uxt  —  ,    19  —  . 


To:  Captain  A  -  B  -  ,  U.  S.  Navy,  mivy  yard,  -      —  ,  -      —  ,  via  com- 

mandant. 
Subject:  Court  of  inquiry  to  inquire  into  the  circumstances  attending  the  Death 

of  —     —  ,  late  fireman  first  class,  U.  S.  Navy. 

1.  A  court  of  inquiry,  consisting  of  yourself  as  president,  and  of  Commander 
1)  —       -   E.    F  —    —  ,   U.    S.   Navy,    and   Lieutenant   Commander   G  —       -  H. 
I  -  ,  U.   S.  Navy,  as  additional  members,  and  of  Lieutenant  J  —       -  K. 
L  -  ,  U.  S.  Navy,  as  judge  advocate,  is  hereby  ordered  to  convene  at  the 
navy  yard,  —     —  ,  —  —  ,  at  10  o'clock  a.  m.  on  Monday,  August  —  ,  19  —  ,  or 
as  soon  thereafter  as  practicable,  for  the  purpose  of  inquiring  into  the  circum- 
stances attending  the  death  of  Mr—  -  -  N.  O  -  -  —  ,  late  fireman  first  class, 
U.  S.  Navy,  attached  to  the  U.  S.  S.  -      —  . 

2.  The  court  will  make  a  thorough  investigation  into  all  the  circumstances 
connected  with  the  death  of  the  above-named  man  ;  and,  in  the  conduct  of  same 
nnd  report  thereon,  will  be  governed  by  the  instructions  contained  in  section 
496  Naval  Courts  and  Boards. 

3.  The  court  will  include  in  its  findings  a  full  statement  of  the  facts  it  may 
deem  to  be  established,  together  with  its  opinion  as  to  whether  further  pro- 
ceedings should  be  had  in  the  matter.    If  further  proceedings  are  recommended, 
the  court  will  comply  willi  the  provisions  of  section  533  Naval  Courts  and 
Boards. 

4.  The  attention  of  the  court  is  particularly  invited  to  section  511  Naval 
Courts  and  Boards. 

5.  The  commandant  of  the  navy  yard,  -  ,  --  ,  is  hereby  directed  to 
furnish  the  necessary  clerical  assistance  for  the  purpose  of  assisting  the  judge 
advocate  in  recording  the  proceedings  of  this  court  of  inquiry. 


Secretary  of  the  Navy. 

503. 

PRECEPT  FOR  COURT  OF  INQUIRY. 

(To  inquire  into  the  condition  of  a  vessel.) 

497. 

~  ^  ~  ^ 


m      r,  -I     i~*  -n  __   —  ._,.  _ 

To:  Commander  C R ,  U.  S.  Navy,  navy  yard,  ,  ,  via 

commandant. 
Subject :  Court  of  inquiry  to  inquire  into  the  condition  of  the  U.  S.  S.  . 

1.  A  court  of  inquiry,  consisting  of  yourself  as  president,  of  Naval  Con- 
structor   ,  U.  S.  Navy,  and  Lieutenant ,  U.  S.  Navy,  as  additional 

members,  and  of  Lieutenant  ,  U.  S.  Navy,  as  judge  advocate,  is  hereby 

ordered  to  convene  at  the  navy  yard,  ,  ,  at  10  o'clock  a.  m.  on 

Monday,  August  — ,  19 — ,  or  as  soon  thereafter  as  practicable,  for  the  purpose 
of   inquiring   into   unsatisfactory    conditions   reported   to   exist   on   board    the 

U.  S.  S. —  in  the  following  respects:  (Here  state  clearly  and  concisely  the 

respects  in  which  conditions  are  alleged   to  be  unsatisfactory  and  are  to   be 
investigated.) 

2.  The  court  will  make  a  thorough  inquiry  into  the  conditions  as  set  forth 
above  and  the  responsibility  therefor. 


PROCEDURE  FOR  COURTS  AND  BOARDS.  419 

3.  It  is  directed  that  the  court  notify  Commander .  r.  S.  Navy,  and 

Lieutenant  ,  U.  S.  Navy,  of  the  time  and  place  of  meeting  of  the  court 

and  that  they  will  be  parties  to  the  inquiry  in  the  status  of  interested  parties 
at  the  outset,  and  will  be  afforded  the  rights  of  such  parties  in  accordance 
with  the  provisions  of  Naval  Courts  and  Boards. 

4.  The  attention  of  the  court  is  particularly  invited  to  section  511,  Naval 
Courts  and  Boards. 

5.  The  court  will  include  in  its  findings  a  full  statement  of  the  facts  it  may 
deem  to  be  established,  together  with  its  opinion  as  to  whether  further  pro- 
ceedings should  be  had  in  the  matter.    If  further  proceedings  are  recommended 
the  court  will  comply  with  the  provisions  of  section  533,  Naval  Courts  and 
Boards. 

6.  The  commandant  of  the  navy  yard,  ,  ,  is  hereby  directed  to 

furnish  the  necessary  clerical  assistance  for  the  purpose  of  assisting  the  judge 
advocate  in  recording  the  proceedings  of  this  court  of  inquiry. 

7.  In  addition  to  the  original  record  of  proceedings  there  shall  be  forwarded 
a  partial  copy  covering  material  in  accordance  with  section  541,  Naval  Courts 
and  Boards. 


Secretary  of  the  Navy. 


PRECEPT  FOR  COURT  OF  INQUIRY. 
(To  inquire  into  the  grounding  (loss)  of  a  vessel.) 

546  to  555. 

To :  Captain ,  U.  S.  Navy,  U.  S.  S.  -      — ,  via  commander  -        -  Force, 

U.  S. —  Fleet. 

Subject:  Court  of  inquiry  to  inquire  into  the  grounding  (loss)  of  the  U.  S.  S. 


1.  A  court  of  inquiry  consisting  of  yourself  as  president,  of  Captain  -      — , 

U.  S.  Navy,  and  Commander ,  U.  S.  Navy,-  as  additional  members,  and  of 

Lieutenant  Commander ,  as  judge  advocate,  is  hereby  ordered  to  convene 

on  board  the  U.  S.  S.  ,  at  10  o'clock  a.  m.  on  September  — ,  19 — ,  or  as 

soon  thereafter  as  practicable,  for  the  purpose  of  inquiring  into  all  the  circum- 
stances connected  with  the  grounding  (loss)  of  the  U.  S.  S.  —       —  near  — 

on  September  — ,  19 — . 

2.  The  court  will  make  a  thorough  investigation  into  all  the  circumstances 
connected  with  the  aforesaid  grounding  (loss),  the  causes  thereof,  damages  to 
property  resulting  therefrom,  injuries  to  personnel  incidental  thereto,  and  the 
responsibility  therefor.     In  connection  with  this  inquiry  the  attention  of  the 
court  is  invited  to  sections  546  to  555,  Naval  Courts  and  Boards. 

3.  It  is  directed  that  the  court  notify  Commander  -      — ,  U.  S.  Navy,  and 
Lieutenant  -      — ,  U.  S.  Navy,  of  the  time  and  place  of  the  meeting  of  the  court 
and  that  they  will  be  parties  to  the  inquiry  in  the  status  of  interested  parties 
at  the  outset,  and  will  be  afforded  the  rights  of  such  parties  in  accordance  with 
the  provisions  of  Naval  Courts  and  Boards. 

4.  The  attention  of  the  court  is  particularly  invited  to  section  511,  Naval 
Courts  and  Boards. 

5.  The  court  will  include  in  its  findings  a  full  statement  of  the  facts  it  may 
deem  to  be  established,  together  with  its  opinion  as  to  whether  further  proceed- 
ings should  be  had  in  the  matter.     If  further  proceedings  are  recommended  the 
court  will  comply  with  the  provisions  of  section  533,  Naval  Courts  and  Boards. 


420  PROCEDURE    FOR    COL'RTS  AND   BOARDS. 

6.  The  commander Force,   U.   S.  Fleet,   is  hereby  directed  to 

furnish  the  necessary  clerical  assistance  to  aid  the  judge  advocate  in  recording 
the  proceedings  of  this  court  of  inquiry. 

7.  In  addition  to  the  original  record  of  proceedings  there  shall  be  forwarded  a 
partial  copy  covering  material  in  accordance  with  section  541,  Naval  Courts 
and  Boards. 

Secretary  of  the  Navy. 
503. 


V. 

INVESTIGATIONS.   BOARDS  OF  INVESTIGATION. 

(Chapters  XIV,  XV,  XVI— Part  I.) 


421 


,£oiTAoiT837/n  w  gajuoa  M 

(.1  fiitt— IV7.  )) 


INVESTIGATIONS — BOARDS  OF  INVESTIGATION. 


EECOED  OF  PEOCEEDINGS 

OF  AN 

INVESTIGATION 

CONDUCTED  AT 

THE  NAVY  YAKD,  NEW  YORK, 

BY  ORDER  OF 

THE  SECRETARY  OF  THE  NAVY 
568 

TO  INQUIRE  INTO . 

569 

AUGUST-,  19-. 
82  to  92;  579 

Precept :  See  forms,  pp.  424-426. 

579;  539 

_ 

FIRST   DAY 

(//  case  covers  more  than  one  day.) 

NAVY  YARD,  NEW  YORK, 
10  a.  m.,  Thursday,  August  — ,  19 — . 

The    investigating   officer,    Mr.    A—  B —  (Commander 

G—       -  B.  W—       — ,  U.  S.  Navy),  administered  the  prescribed  oath 

to  Mr.  C D ,  the  stenographer,  who  then  took  his  seat  as 

such. 

572 


The  investigating  officer  called  before  him  Foreman 


the  complainant,   and   Quarterman  -  — ,  the   defendant, 

and  announced  that  the  investigation  would  be  conducted  with  open 
doors. 

574 

423 


424  PROCEDURE   FOR   COURTS   AND  BOARDS. 

The  investigating  officer  then  read  the  order  directing  him  to 
make  the  investigation  (and  the  other  papers  transmitted  to  him  by 
the  department),  which  is  (are)  hereto  prefixed,  marked  "  — 
(and  "-        -")• 

577;  521 

Foreman and  Quarterman  -  —  were  then 

informed  of  their  rights  to  be  present  during  the  investigation  and 
be  represented  by  counsel. 

575 

i&orry. 

Quarterman desired  to  be  represented  by  counsel  and,  with 

the  permission  of  the  investigating  officer,  Mr.  O —  -  N.  R 

entered  as  such. 

W B.  C was  called  as  a  witness  and  duly  sworn. 

573 

(Investigation  conducted  in  the  same  manner  as  in  a  court  of 
inquiry.  See  form,  pp.  412-415.) 

577 
*     *     * 

The  investigating  officer  and  the  parties  to  the  investigation  had 
no  further  witnesses  to  call  and  nothing  further  to  offer.  The  in- 
vestigating officer  announced  that  the  investigation  was  closed. 

After  full  and  mature  deliberation,  the  investigating  officer  finds 
as  follows.  (Insert  finding.} 

578;  566  to  567 

A T} 

**>  ~    **  « 

Investigating  Officer, 
,  Navy  Department. 

yar Q B.  W , 

Commander,  V.  S.  Navy. 

LETTEB  TO  INVESTIGATING  OFFICER. 

NAVY  DEPARTMENT, 
Washington,  August  — ,  19 — . 
From :  The  Secretary  of  the  Navy. 

To :  Mr.  A —      -  B —    — ,  Navy  Department,  Washington. 

Subject :  Investigation  of  charges  preferred  against  A—      -  W.  L —    — ^quar- 
terman  in  charge  of  mechanics,  navy  yard,  New  York. 

Reference:   (a)  Letter  from  W M ,  foreman  of  construction  and 

repair,  navy  yard,  New  York,  of  7-12-15. 


PROCEDURE  FOR  COURTS  AND  BOARDS.  425 

Inclosures:  2. 

1.  Under  the  authority  of  section  183  of  the  Revised  Statutes,  as  amended  by 
the  act  of  February  13,  1911,  you  are  hereby  detailed  to  investigate  certain 
charges  preferred  against  A —       -  W.  L —    — ,  quarterman  in  charge  of  me- 
chanics, department  of  construction  and  repair,  navy  yard,  New  York,  which 
charges  are  contained  in  reference  (a),  and  inclosures. 

2.  In  accordance  with  the  provisions  of  the  statute  above-mentioned,   you 
are  given  authority  to  administer  an  oath  to  any  witness  attending  to  testify 
or  depose  during  the  course  of  the  investigation. 

3.  You  will  notify  Quarterman  L —      —  of  the  nature  of  the  charges  against 
Mm,  notify  him  that  he  may  be  present  during  the  examination  of  witnesses, 
and  give  him  an  opportunity  to  introduce  such  witnesses  and  to  make  such 
statement  as  he  may  desire. 

4.  You  will  also  notify  Foreman  —       —  of  these  instructions  and  inform  him 
that  if  he  wishes  to  be  present  during  the  investigation  or  to  suggest  the  calling 
of  witnesses  you  will  afford  him  an  opportunity  to  do  so. 

5.  You  will  make  a  careful  and  thorough  examination  into  all  the  matters 
set  forth  in  the  papers   above   mentioned,   and  upon   completion   of  the   in- 
vestigation you  will  report  to  the  department  the  testimony  taken  and  the 
facts  established  thereby. 

•  6.  The  Commandant  of  the  navy  yard, 'New  York,  is  hereby  directed  to  afford 
you  such  facilities  as  may  be  necessary  to  the  proper  conduct  of  the  investiga- 
tion, and  to  furnish  the  necessary  clerical  assistance. 

570 

"1  SJMY.j  'i.T 

NAVY  DEPARTMENT, 
Washington,  August  — ,  19 — . 
From :  The  Secretary  of  the  Navy. 

To:  Commander  G —       -  B.  W—     — ,  U.  S.  Navy,  navy  yard,  New  York,  via 
Commandant. 

Subject :  Investigation  of  alleged  misconduct  of  Lieutenant  X —  Y.  Z , 

U.  S.  Navy. 
Inclosures:  2. 

1.  Under  the  authority  of  section  183  of  the  Revised  Statutes,  as  amended  by 
the  act  of  February  13,  1911,  you  are  hereby  detailed  to  investigate  the  alleged 

misconduct  of  Lieutenant  X Y.  Z ,  U.  S.  Navy,  as  set  forth  in  the 

papers  inclosed. 

2.  In  accordance  with  the  provisions  of  the  statute  above  mentioned,  you  are 
given  authority  to  administer  an  oath  to  any  witness  attending  to  testify  «or 
depose  during  the  course  of  the  investigation. 

3.  You  will  notify  Lieutenant  Z of  the  nature  of  the  charges  against 

him  and  of  his  right  to  be  present  during  the  investigation,  and  you  will  give 
him  an  opportunity  to  introduce  such  witnesses  and  to  make  such  statement 
as  he  may  desire. 

4.  You  will  make  a  thorough  investigation  of  the  matters  set  forth  in  the 
papers  above  mentioned,  and  upon  the  completion  of  the  investigation  you  will 
make  a  complete  report  to  the  department  of  the  facts  which  you  deem  to  be 
established,  together  with  specific  data  as  to  the  times  and  places  of  the 
misconduct,  if  any. 


426  PROCEDURE   FOR   COURTS  AND  BOARDS. 

5.  The  commandant  of  the  navy  yard,  New  York,  is  hereby  directed  to  afford 
you  such  facilities  as  may  be  necessary  to  the  proper  conduct  of  the  investiga- 
tion and  to  furnish  the  necessary  clerical  assistance. 

570 

(When  circumstances  require,  an  investigating  officer  may  be  authorized  to 
employ  outside  stenographic  assistance  at  the  usual  market  rate,  to  be  agreed 
upon  in  writing  before  any  services  are  rendered.  For  form  of  agreement,  see 
p.  370.) 

RECORD  OF  PROCEEDINGS 

OF  A 

BOARD  OF  INVESTIGATION 

. 

CONVENED  AT 

THE  NAVY  YARD,  NEW  YORK. 
Var. — On  board  the  U.  S.  S.  , 

BY   ORDER   OF 

THE  COMMANDANT,  NAVY  YARD  AND  STATION, 
NEW  YORK. 

Var.  1. — The  commander  in  chief,  U.  S.  Atlantic  Fleet. 

Var.  2. — The  commanding  officer,  U.  S.  S.  -      — ,  senior  officer  present, 

. 

582 

TO  INQUIRE  INTO 

583 

A  -1C*      -K\ 

AUGUST  12, 19 — . 

• 

82  to  92;  593 
Precept :  See  form,  p.  428. 

593;  539 

FIRST    DAY. 

(//  case  covers  more  than  one  day.) 


PROCEDURE  FOR  COURTS  AND  BOARDS.  427 

NAVY  YARD,  NEW  YORK, 

Thursday,  August  12,  19 — .  •-, 

The  board  met  tit  10  a.  m. 
Present: 

Commander  G H ,  U.  S.  Navy,  senior  member; 

Lieutenant  I K — ,  U.  S.  Navy,  member ;  and 

Lieutenant  L M —     — ,  U.  S.  Navy,  member  and  recorder. 

• 

584 

The  convening  order,  hereto  prefixed,  marked  " ,"  was  read, 

and  the  board  determined  upon  its  procedure  and  decided  to  sit 
with  open  doors. 

588;  574 

Ensign  P Q.  R was  called  as  a  witness : 

586;  587 

(Investigation  conducted  same  as  in  court  of  inquiry.  See  forms, 
pp.  412-415.) 

KQ1 
0*71 

*       *       * 

' 

There  were  no  further  declarations  to  be  introduced  nor  anything 
further  to  be  offered  by  the  recorder  or  any  of  the  parties  to  the 
investigation,  and  the  senior  member  announced  that  the  investiga- 
tion was  closed. 

The  board,  after  maturely  deliberating  upon  the  declarations 
recorded  above,  finds  as  follows:  (Insert  -finding  and  opinion,  if 
required.  See  form,  p.  416.) 


„„„,  wvv  to  „„, 


Commander,  U.  S.  Navy,  Senior  Member. 

I K , 

Lieutenant,  U.  S.  Navy,  Member. 

L_       _  M , 

Lieutenant,  U.  S.  Navy,  Member  and  Recorder. 

563  to  565 


26450°— 17 — —28 


428  PROCEDURE   FOR  COURTS  AND  BOARDS. 

ACTION  OF  CONVENING  AUTHORITY. 

U.  S.  S.  WYOMING, 

Navy  Yard,  New  York,  August  — ,  19 — . 

The  proceedings  and  findings  (the  proceedings,  finding's,  and 
opinion)  of  the  board  (investigation)  in  the  foregoing  case  are 
approved  and  respectfully  referred  to  the  Secretary  of  the  Navy. 

5 

Captain,  U.  S.  Navy,  Commanding,  and 

Senior  Officer  Present  Afloat. 

Var.— The  proceedings  and  findings  (the  proceedings,  findings,  and  opinion) 
of  the  board  (investigation)  in  the  foregoing  case  are  disapproved  for  the 
following  reasons  (give  fully),  and  the  papers  in  the  case  are  respectfully 
referred  to  the  Secretary  of  the  Navy. 

581;  595;  544 

ORDER    CONVENING    A    BOARD    OF    INVESTIGATION. 

U.  S.  S.  WYOMING, 

Navy  Yard,  New  York,  August  — ,  19 — . 
From :  Commanding  Officer,  senior  officer  present  afloat. 

To:  Commander  G H ,  U.  S.  Navy,  U.  S.  S.  Texas,  via  Command- 
ing Officer. 
Subject:    Board   of   investigation   in   the   case   of   the   collision   between   the 

steamers  of  the  U.  S.  S. and  the  U.  S.  S. that  occurred  in  the 

North  River  July  — ,  19 — . 

1.  A  board  of  investigation,  consisting  of  yourself  as  senior  member  and  of 

Lieutenants  I K.   L and  L M.  W—    — ,  U.   S.   Navy,   as 

additional  members,   will   convene  on  board  the   Texas  at  10  o'clock  a.   m., 
Thursday,  August  — ,  19 — ,  for  the  purpose  of  inquiring  into  and  reporting 

upon  the  collision  between  the  first  steamer  of  the  U.  S.  S.  and  the 

second  steamer  of  the  U.  S.  S. that  occurred  in  the  North  River,  New 

York,  July  — ,  19—. 

2.  The  board  will  make  a  thorough  investigation  of  all  the  circumstances 
attendant  to   the  above-mentioned   collision   and   upon   the   conclusion   of   its 
Investigation  will  report  the  facts  established  thereby,  the  amount  of  damage 
to  each  steamer,  and  the  board's  conclusion  as  to  the  responsibility  for  the 
collision,  and  will  forward,  in  addition  to  the  original  record  of  proceedings,  a 
partial  copy  covering  material  in  accordance  with  section  593,  Naval  Courts 
and  Boards. 

3.  The  attention  of  the  board  is  particularly  invited  to  sections  589  and  511, 
Naval  Courts  and  Boards. 

585 


VI. 

BOARDS  OF  INQUEST. 

(Chapter  XVII— Part  I.) 


429 


BOAKDS  OF  INQUEST. 


RECORD  OF  PROCEEDINGS 

OF  A 

• 

BOARD  OF  INQUEST 

CONVENED    AT 

THE  NAVY  YARD,  NEW  YORK, 

' 

BY  ORDER  OF 

THE  COMMANDANT 

IN  THE  CASE  OF 

A B ,  LATE  SEAMAN,  U.  S.  NAVY. 

AUGUST  — ,  19—. 
82  to  92 

Fan—Convened  on  board  the  U,  S.  8,  by  order  of  Captain  T 

B.  S ,  U.  S,  Navy,  Senior  Officer  Present, 

596 

. 

Precept :  See  form,  p.  433. 

606;  539 

; 

NAVY  YARD,  NEW  YORK,  July  — ,  19 — . 

At  a  board  of  inquest  assembled  by  the  order  hereto  prefixed, 

marked  " ,"  on  the  body  of  A B ,  late  seaman, 

U.  S.  Navy,  found  dead. 

Present  • 

Lieutenant  Commander  E F—      — ,  U.  S.  Navy,  president; 

Surgeon  G—       -  H—      — ,  U.  S.  Navy ;  and 

Lieutenant  I K—     — ,  U.  S.  Navy,  members;  and 

Ensign  L M ,  U.  S.  Navy,  recorder. 


431 


432  PROCEDURE   FOR  COURTS  AND  BOARDS. 

The  recorder  read  the  order  convening  the  board. 

The  board  proceeded  to  the  place  where  the  body  was  found. 

Var. — The  board  proceeded  to for  the  purpose  of  viewing  the  body. 

600 

Surgeon  G—  —  H ,  U.  S.  Navy,  examined  the  body  and 

reported  to  the  board  that  the  cause  of  the  death  was  too  apparent 
to  necessitate  the  performance  of  an  autopsy. 

Var. reported  to  the  board  that  the  circumstances  attending  the 

death  of  A —  -  B —  -  were  of  such  a  nature  as  to  require  that  an  autopsy 
be  performed,  which  was  done. 

600 

The  board  then  returned  to  the  place  where  it  had  first  convened 
and  took  the  following  evidence : 

601 

was  called  as  a  witness. 


602;  603 

1.  Q.  State  all  you  know  about  the  death  of  A B- 

seaman,  U.  S.  Navy. 
A    *     *     * 

9    f)    *     *     * 
Z.  l^. 

A       *       *       * 
A. 

604 

The  witness  withdrew. 

Var. — Passed  Assistant  Surgeon  A H.  K ,  U.  S.  Navy,  was  called 

as  a  witness, 

1.  Q.  State  your  opinion  in  regard  to  the  cause  of  the  death  of  the  deceased, 
A,  *    *    *. 

604 

Surgeon  G H — ,  U.  S.  Navy,  (who  had  performed  an 

autopsy  on  the  body),  stated  that,  in  his  opinion,  the  deceased  met 

his  death  on  (date),  while  on  board  the  U.  S.  S.  ,  then  at 

(or,  at  Brooklyn,  New  York),  by  reason  of  (state  cause). 

600 

The  inquest  was  finished. 

The  board,  from  a  view  of  the  body,  and  from  the  evidence  before 

it,  identified  the  body  as  that  of  A B ,  late  seaman, 

U.  S.  Navy,  and  is  of  the  opinion  that  A B ,  late  seaman, 


PROCEDURE  FOR  COURTS  AND  BOARDS.  433 

IT.  S.  Navy,  died  on   (date)   while  on  board  the  U.  S.  S.  , 

then  at  -  -  (while  on  authorized  liberty  at  Brooklyn,  New  York) 
(while  absent  without  authority  at  Brooklyn,  New  York) ,  by  reason 
of  (state  cause),  and  that  his  death  was  (not)  occasioned  by  an  act 
of  duty  in  which  he  was  engaged  when  it  occurred  (and  was  [not] 
the  result  of  his  own  misconduct). 

605;  566;  567 

Hi  r  , 

Lieutenant  Commander,  U.  S.  Navy,  President. 

G H-     -, 

Surgeon,  U.  8.  Navy,  Member. 
T_ ir 

-     iV  , 

Lieutenant,  U.  S.  Navy,  Member. 
Ensign,  U.  S.  Navy,  Recorder. 

563;  565 

NAVY  YARD,  NEW  YORK, 

August  — ,  19 — . 

The  proceedings  of  the  board  of  inquest  in  the  foregoing  case  are 
approved  and  forwarded. 

Captain,  U.  S.  Navy,  Commandant. 

608 

From:  Commandant. 

To :  Lieutenant  Commander  E F ,  U.  S.  Navy. 

Subject :  Convening  board  of  Inquest. 

1.  A  board,  consisting  of  yourself  as  president,  and  of  Surgeon  G 

H and  Lieutenant  I K ,  U.  S.  Navy,  as  additional  members, 

and   Ensign  -L M ,   U.    S.   Navy,    as   recorder,   will   immediately 

assemble  for  the  purpose  of  investigating  and  reporting  upon  the  circumstances 

attending  the  death  of  A B ,  late  seaman,  U.  S.  Navy,  attached  to 

the  seamen's  quarters,  this  navy  yard,  on  (or  about)  at  (or  near)  — .. — . 

2.  The  proceedings  of  the  board  will  be  conducted  in  accordance  with  the 
provisions  of  Naval  Courts  and  Boards,  sections  596  to  608. 


I 

[ion]  Hfr//  hi; 


796  ;8 


.- 

808 


i 

. H (7, 


VII. 

NAVAL  EXAMINING  BOARDS. 

(Chapter  XVIII— Part  I.) 


435 


JIV 
ZraMAXa  JAYAft 

/: 


. 

NAVAL  EXAMINING  BOAKDS. 


RECORD  OF  PROCEEDINGS 

OF  A 

NAVAL  EXAMINING  BOARD 

CONVENED   AT 

THE  NAVY  YARD,  MARE  ISLAND,  CAL., 
Far.—  On  board  the  U.  S.  S.  New  York, 

IN  THE   CASE  OF 

LIEUTENANT  H  --  C.  E  -  ,  U.  S.  NAVY, 
APRIL  25,  19  —  . 

82  to  92 

Precept  :  See  form,  p.  443. 
651 

NAVAL  EXAMINING  BOARD, 
Navy  Yard,  Mare  Island,  Col,,  May  JT,  19—  . 

646 

The  board  met  at  10  a.  m.,  April  25,  19—,  pursuant  to  an  order, 
copy  prefixed,  marked  "A." 


pursuant  to  orders,  copies  prefixed,  marked  "A(l)"  to  "A  (3)." 
(This  variation  is  used  when  original  members  are  detached;  when  the  date 
or  place  of  meeting  is  changed,  etc.) 

651 

Present  : 

Rear  Admiral  A  -  B.  C  -  ,  U.  S.  Navy  ; 

Captain  D  -  E.  F  -  ,  U.  S.  Navy,  and 

Captain  G-        -  H.  K-      —  ,  U.  S.  Navy,  members,  and 

Lieutenant  L  -  M.  N—      —  ,  U.  S.  Navy,  recorder. 

616  to  618 

437 


438  PROCEDURE   FOR  COURTS  AND  BOARDS. 

Lieutenant  H—  -  C.  E  —  —  ,  U.  S.  Navy,  reported  for  exami- 
nation in  obedience  to  an  order,  copy  prefixed,  marked  "  B." 

Var.  —  Mr.  L  —  -  E.  H  —  -  appeared  for  examination  under  authority 
contained  in  a  letter,  copy  prefixed,  marked  "  B." 

622 

The  precept  (and  orders  altering  the  same)  was  (were)  read  by 
the  recorder,  and  there  was  no  objection  to  any  member. 

Var.  —  The  candidate  objected  to  Captain  D  —  -  E.  F  —  —  ,  U.  S.  Navy,  as 
n,  member,  on  account  of  --  (  state  reasons  )  .  Procedure  the  same  as  for 
challenge  under  general  court-martial,  p.  345. 

/a; 


The  board  and  the  recorder  were  duly  sworn. 
•    '•'•  636  to  637 

The  candidate  stated  that  he  was  ready  for  examination. 

Var.  --  that  he  was  not  ready  for  examination,  and  the  facts  of  the 
case  were  reported  to  the  Bureau  of  Navigation,  copy  of  letter  appended, 
marked  "  --  ." 

The  board  then,  at  —  a.  m.,  adjourned  until  —  a.  m.,  to-morrow,  Friday. 

The  board  then  conducted  the  examination  of  the  candidate  as 
follows  : 

Began.  Ended. 

April  25.  Subject:  Steam  engineering;   electricity;   ord- 

nance  and   gunnery;    seamanship; 

navigation  and  piloting.     (Oral)  —10.00  a.m.       4,20  p,  m, 
April  26.  Subject:  Practical  navigation/   (Written)  ----    9.30  a.m.      4.30  p.m. 

April  27.  Subject:  Strategy  and  tactics.     (Written)  ----    9,40a.m.      4.30  p.m. 

April  28.  Subject:  Law.      (Written)  ________  ___________    9.30a.m.    12.30p.m. 

Practical  examination  _______________    1.30p.m.      3.30p.m. 

or,  as  required  by  instructions  accompanying  the  precept  or  otherwise  issued 
for  the  purpose  of  governing  the  scope  and  character  of  examinations, 

630 

The  written  examination  is  appended,  marked  -  . 

When  applicable.  —  Owing  to  a  lack  of  facilities  for  conducting  a  practical 
examination  at  —  —  ,  as  shown  by  the  correspondence,  copy  appended  marked 
—  ,  that  part  of  the  examination  was  not  held. 

A  copy  of  the  questions  asked  by  the  board,  the  mark  for  each 
question  asked  and  the  average  mark  for  each  subject,  together  with 
the  board's  individual  opinion  of  the  candidate's  service  record  in 
grade,  is  appended,  marked  -  .  \  ]  •  _ 

******* 
A  communication,  appended  marked  "  -  ,"  was  received  from  the 

Navy  Department  transmitting  the  papers  named  therein,  which 


PROCEDURE  FOR  COURTS  AND  BOARDS.  439 

were  duly  considered  by  the  board  and  which,  with  the  exception  of 
those    intended    for    the    Medical    Board,    are    appended,    marked 

« »  fn  « " 

IU 

632;  633 

The  candidate  did  not  desire  to  call  any  witnesses  or  to  take  the 
s^and  as  a  witness  in  his  own  behalf  (or  as  the  case  may  be). 

623;  638  to  642 

• 

(//  the  candidate  be  a  line  officer  above  the  grade  of  lieutenant:) 
From  the  evidence  before  the  board,  it  appears  that  the  candidate 
has  taken  a  course  of  instruction  at  the  Naval  War  College ;  that  the 
duration  of  the  course  was  from  April  — ,  19 — ,  to  August  — ,  19 — . 
During  his  attendance  at  the  War  College  it  appears  that  the  candi- 
date took  advantage  of  •  his  opportunities  to  an  excellent  degree 
(or  as  the  case  may  be). 

Var. — It  does  not  appear  from  the  evidence  before  the  board  that  the  candi- 
date has  taken  any  course  of  instruction  at  the  Naval  War  College. 

648 

The  examination  of  the  candidate  having  been  concluded,  he  was 

discharged  from  further  attendance. 

' 

624 

The  board,  having  deliberated  on  the  evidence  before  it,  decided 
that  the  mental,  moral,  and  professional  fitness  of  the  candidate  to 
perform  all  his  duties  at  sea  has  been  established  to  its  satisfaction. 

We  hereby  certify  that  Lieutenant  H—  -  C.  E —  — ,  U.  S. 
Navy,  has  the  mental,  moral,  and  professional  qualifications  to  per- 
form efficiently  all  the  duties,  both  at  sea  and  on  shore,  of  the  grade 

(grades)  to  which  he  is  to  be  promoted,  to  wit : (and ), 

and  recommend  him  for  promotion. 

643  to  644 

. 

A J3     Q 

Rear  Admiral,  U.  8.  Navy,  President. 

D-       -E.  F-     -, 
Captain,  U.  S.  Navy,  Member. 

G-       -  H.  K-     — , 
Captain,  U.  S.  Navy,  Member. 

L M.  N- , 

Lieutenant,  U.  S.  Navy,  Recorder. 

650 


440  PROCEDURE  FOR  COURTS  AND  BOARDS. 

Var.  1. has  been  established  to  its  satisfaction.     In  arriving  at  its 

conclusion  as  to  the  professional  (moral)  fitness  of  the  candidate,  the  board 
fully  considered  the  record  of  proceedings  of  the  general  court-martial  before 
which  the  candidate  was  tried  October  19,  19 —  (the  unfavorable  reports  on  fit- 
ness from  October  1,  19 — ,  to  March  81,  19 — ,  and  from  April  1,  19 — ,  to  Septem- 
ber 30,  19 — ,  as  follows:)  (the  letter  of  reprimand  addressed  to  the  candidate 
by  the  department  under  date  of  March  -4,  19 — ,  as  follows : ) ,  but  in  view  of 
the  candidate's  otherwise  excellent  record  as  indicated  by  his  reports  on  fitness 
(or  state  other  reasons),  the  board  came  to  a  favorable  conclusion  as  to  his 
professional  (moral)  fitness  notwithstanding  such  evidence. 

We  hereby  certify,  etc. 

649 

Var.  2. — The  board,  haying  deliberated  on  the  evidence  before  it,  decided 
that  the  mental  and  the  moral  fitness  of  the  candidate  to  perform  all  his  duties 
at  sea  has  been  established  to  its  satisfaction ;  but  that  owing  to  deficiency 

in  the  subject  of  ,  as  shown  by  his  written  examination  papers  hereto 

appended  (or  as  the  case  may  be),  his  professional  fitness  has  not  been  so 
established. 

We  hereby  certify  that  Lieutenant  H C.  E ,  U.  S.  Navy,  has  the 

mental  and  the  moral,  but  not  the  professional,  qualifications  to  perform  effi- 
ciently all  the  duties,  both  at  sea  and  on  shore,  of  the  grade  to  which  he  is  to 
be  promoted,  to  wit ,  and  do  not  recommend  him  for  promotion. 

645 

Var.  3. — (Majority  and  minority  opinion).  We  hereby  certify  that  Lieutenant 
H C.  E ,  U.  S.  Navy,  has  the  mental,  moral,  and  professional  quali- 
fications to  perform  efficiently  all  the  duties,  both  at  sea  and  on  shore,  of  the 

grade  to  which  he  is  to  be  promoted,  to  wit  ,  and  recommend  him  for 

promotion. 

A B.   C , 

Read  Admiral,  U.  S.  Navy,  President. 

G H.  K , 

Captain,  U.  S.  Navy,  Member. 

From  an  inspection  of  the  written  examination  of  the  candidate,  and  from 
the  answers  to  interrogatories  sent  to  officers  under  whom  the  candidate  has 
served,  I  am  constrained  to  differ  with  the  majority  of  the  board  as  to  the  pro- 
fessional fitness  of  the  candidate  to  perform  all  his  duties  at  sea. 

I  hereby  certify  that  Lieutenant  H—  -  C.  E —  — ,  U.  S.  Navy,  has  the 
mental  and  moral,  but  not  the  professional  qualifications  to  perform  efficiently 
all  the  duties  both  at  sea  and  on  shore,  of  the  grade  to  which  he  is  to  be  pro- 
moted, to  wit ,  and  do  not  recommend  him  for  promotion. 

Captain,  V.  S.  Navy,  Member. 

L M.  N , 

Lieutenant,  U.  S.  Navy  Recorder. 

650 

Var.  4- — The  board  having  deliberated  on  the  evidence  before  it,  and  having 
determined  that  from  such  evidence  it  appears  prima  facie  that  Lieutenant 

H C.  E ,  U.   S.  Navy,  is  not  morally  qualified  for  promotion  by 

reason  of  his  own  misconduct  (drunkenness)    (overindulgence  in  intoxicants) 


PROCEDURE  FOR  COURTS  AND  BOARDS.  441 

(or,  as  tlie  case  may  be),  he  was  called  before  the  board  and  informed  of  and 
given  an  opportunity  to  be  heard  upon  the  charges  against  him,  as  follows : 

On  October  19,  19 — ,  he  was  under  the  influence  of  intoxicating  liquor  on 
board  of  the  U.  S.  S.  —  —  while  executive  officer  of  that  vessel. 

That  in  the  report  of  fitness  from  April  — ,  19 — ,  to  September  — ,  19 — ,  his 
commanding  officer  reported  that  he  would  object  to  having  him  under  his 
immediate  command  unless  he  received  satisfactory  assurance  that  this  officer 
would  entirely  abstain  from  the  use  of  intoxicating  liquor. 

The  claim  of  -       —  &  Co.,  New  York,  dated  September  — ,  19 — ,  as  follows  : — 

The  claim  of  H &  B —  — ,  Brooklyn,  N.  Y.,  dated  November  — ,  19 — , 

as  follows : — 

An  extract  from  the  medical  record  of  the  candidate,  dated  July  — ,  19 — , 
and  reading  as  follows  : 

Lieutenant  E —  —  asked  permission  to  introduce  A —  —  R as  a  wit- 
ness. The  request  was  granted,  and  the  witness  entered  and  was  duly  sworn. 

(Testimony  recorded  as  for  defense  in  general  court  martial.) 

Lieutenant  E —  — ,  the  candidate,  was,  at  his  own  request,  called  as  a 
witness  and  duly  swrorn,  etc. 

After  the  consideration  of  his  case,  during  which  the  board  was  cleared,  the 
board  was  opened,  and  the  candidate  was  discharged  from  further  attendance. 

The  board  was  then  cleared  for  deliberation  and  decided  that  the  mental 
and  professional  fitness  of  the  candidate  to  perform  all  his  duties  at  sea  has 
been  established  to  its  satisfaction;  but  that,  by  reason  of  drunkenness  (or, 
by  reason  of  -  — )  which  is  the  result  of  his  o\vn  misconduct,  his  moral 
fitness  has  not  been  so  established. 

We  hereby  certify  that  Lieutenant  H —  —  C.  E ,  U.  S.  Navy,  has  the 

mental  and  professional,  but  not  the  moral,  qualifications  to  perform  all  the 
duties,  both  at  sea  and  on  shore,  of  the  grade  to  which  he  is  to  be  promoted, 
to  wit ,  and  do  not  recommend  him  for  promotion. 


645  •  656 


Var.  5. —  (In  case  of  a  candidate  for  admission  to  any  staff  corps  of  the  Navy, 
except  the  pay  corps). 

The  board,  having  deliberated  on  the  evidence  before  it,  found  that  the  candi- 
date has  obtained  a  general  average  of  —  per  cent  and  decided  that  his  mental, 
moral,  and  professional  qualifications  have  been  established  to  its  satisfaction. 

We  hereby  certify  that  -  -  is  mentally,  morally,  and. professionally 

qualified  for  admission  to  the  United  States  Navy  as  an  assistant  surgeon 
(assistant  civil  engineer,  or,  as  the  case  may  be),  and  recommend  him  for 
appointment. 

644  to  645 

Var.  6. —  (In  case  of  a  candidate  for  admission  to  the  Pay  Corps:) 

The  board,  having  deliberated  on  the  evidence  before  it,  found  that  the  candi- 
date has  obtained  a  general  average  of  --  per  cent,  and  decided  that  his 
physical,  mental,  and  moral  qualifications  have  been  established  to  its  satis- 
faction. 

We  hereby  certify  that  -  -  is  physically,  mentally,  and 

morally  qualified  for  admission  to  the  U.  S.  Navy  as  an  assistant  paymaster, 
and  recommend  him  for  appointment. 

644;  645;  617 


442  PROCEDURE   FOR  COURTS  AND  BOARDS. 

PROCEDURE  IN  CASE  AN  OFFICER  IS  TO  BE  EXAMINED  ON  HIS  RECORD  ONLY. 

625 

NAVAL,  EXAMINING  BOARD, 

Navy  Yard,  Washington,  D.  C.,  August  1, 19 — . 
The  board  met  at  10  a.  m.,  July  31,  19 —  (or,  this  date),  pursuant 
to  an  order,  copy  prefixed  marked  "A." 
Present: 

Eear  Admiral  A -  B.  C ,  U.  S.  Navy ; 

Bear  Admiral  D E.  F ,  U.  S.  Navy;  and 

Captain  G H.  K ,  IT.  S.  Navy,  members;  and 

Lieutenant  L M.  N ,  U.  S.  Navy,  recorder. 

The  board  convened  for  consideration  of  the  case  of  Commander 
O —  -  P.  Q —  — ,  U.  S.  Navy,  preliminary  to  his  promotion. 

The  precept  was  read  by  the  recorder.  The  recorder  and  the  board 
were  duly  sworn. 

A  letter  from  the  Navy  Department,  directing  the  examination  of 

Commander  Q on  his  record  only,  is  appended  marked  "B." 

A  communication,  appended,  marked  "  C,"  was  received  from  the 
Navy  Department,  transmitting  the  papers  named  therein,  which 

are  appended,  marked  " "  to  " ." 

The  board,  having  deliberated  on  the  evidence  before  it,  and  hav- 
ing taken  into  consideration  their  association  with  the  candidate  in 
the  Navy  and  his  reputation  as  an  officer,  decided  that  his  mental, 
moral,  and  professional  fitness  to  perform  all  his  duties  at  sea  has 
been  established  to  its  satisfaction. 

We  hereby  certify  that  Commander  O P.  Q ,  U.  S. 

Navy,  has  the  mental,  moral,  and  professional  qualifications  to  per- 
form efficiently  all  the  duties,  both  at  sea  and  on  shore,  of  the  grade 
to  which  he  is  to  be  promoted,  to  wit  -  — — ,  and  recommend  him 
for  promotion. 

A B.  C , 

Rear  Admiral ,  U.  S.  Navy,  President. 

D—       -  E.  F—     — , 
Rear  Admiral,  U.  S.  Navy,  Member. 

G— H.  K , 

Captain,  U.  S.  Navy,  Member. 

L—       -  M.  N-      -, 
Lieutenant,  U.  S.  Navy,  Recorder. 

Var. — The  board,  having  deliberated  on  the  evidence  before  it,  deems  it 
necessary  that  the  candidate  appear  personally  before  it  in  order  to  establish 
his  iitness  for  promotion  for  the  reason  that  the  board  desires  to  inquire  fur- 
ther into  the  matter  of  the  entry  in  his  report  of  fitness,  dated ,  to  the 

effect  that . 

625;  621 


PROCEDURE  FOR  COURTS  AND  BOARDS.  443 

PRECEPT. 

NAVY  DEPARTMENT. 
Washington-,  April  — ,  10 — . 

To:  Rear  Admiral  A B.  C ,  U.  S.  Navy,  navy  yard,  Mare  Island, 

California,  via  Commandant. 

1.  A  naval  examining  board,   for  the  examination  of  such   candidates  for 
admission  or  promotion  as  may  be  directed  to  appear  before  it,  is  hereby  ordered 
to  convene  at  the  navy  yard,   Mare  Island,   California,   as  soon  as  may  be 
practicable. 

2.  The  board  will  consist  of  yourself  as  president,  and  of  Captains  D 

E.  F and  G H.  K -,  U.  S.  Navy,  as  members. 

3.  Lieutenant  L M.  N ,  U.  S.  Navy,  will  act  as  recorder. 

4.  The  proceedings  of  the  board  will  be  conducted  and  the  record  forwarded 
in  accordance  with  the  instructions  contained  in  "  Naval  Courts  and  Boards." 
(Add  or  refer  to  such  instructions  as  may  apply  relative  to  the  conduct  of  the 
examination. ) 


Secretory  of  the  Nncy. 
619 

PRECEPT  IX   15LAXK. 

In  cases  where  desirable  a  precept  may  ~be  signed  in  blank  "by  a 
duly  authorized  convening  authority.  In  such  cases  the  form  given 
above  is  to  be  followed  except  that  the  time  and  'place  of  meeting 
and  the  composition  of  the  board  is  left  blank.  Such  precept  in 
blank  will  be  forwarded  to  a  designated  officer  together  with  instruc- 
tions requiring  him  to  insert  the  time  and  place  of  meeting  and  name 
the  composition  of  the  board  from  such  eligible  officers  as  he  may 
deem  proper.  The  designated  officer,  having  complied  with  the  above, 
countersigns  the  precept  and  forwards  same  to  the  officer  named  by 
him  as  president. 

PRECEPT  ISSUED  BY  OFFICER  AUTHORIZED  TO  CONVENE  EXAMINING  BOARDS 
BY  THE  SECRETARY  OF  THE  NAVY. 

In  cases  where  the  Secretary  of  the  Navy  has  authorized  "  the 
senior  officer  present,  or  other  commanding  officer,  on  a  foreign 
station"  to  order  boards  in  accordance  with  the  act  quoted  in  sec- 
tion 615,  the  precept  issued  by  an  officer  so  authorized  shall  refer- 
to  his  authorization. 

LETTER  TO  CANDIDATE  FOR  PROMOTION. 

NAVY  DEPARTMENT,  BUREAU  or  NAVIGATION, 

Washington,  April  — ,  19 — . 
To:  Lieutenant    (junior  grade)    F —      -  A.  R —    — ,  U.  S.  Navy,  navy  yard, 

Washington,  D.  C.,  via  Commandant. 
Subject :  Examination  for  promotion. 

1.  Report  to  the  president  of  the  board  of  medical  examiners,  navy  yard, 
Washington,  D.  C.,  at  10  a.  rn.,  April  — ,  19 — ,  for  examination,  preliminary  to 

promotion  to  the  grade  (grades)  of  (and  ),  in  accordance  with 

section  1493  of  the  Revised  Statues. 

2.  Upon  the  completion  of  this  examination,  or  when  otherwise  directed  by 
proper  authority,  you  will  report  to  the  president  of  the  naval  examining  board 
for  the  examination  required  by  section  1496  of  the  Revised  Statutes. 

3.  This  is  in  addition  to  your  present  duties. 

622 

26450°— 17 29 


444  PROCEDURE   FOR  COURTS  AND  BOARDS. 

LETTER    TRANSMITTING    MATTER    ON    FILES    RELATIVE    TO    CANDIDATE. 

NAVY  DEPARTMENT,  BUREAU  OF  NAVIGATION, 

Washington,  D.  C.,  July  — ,  19— . 

To :  President,  Naval  Examining  Board,  navy  yard,  Washington,  D.  C. 
Subject :  Transmitting  papers  for  consideration  in  connection  with  examination 

for  promotion. 
Inclosures:  23. 

Lieutenant  S —      -  P.  L —    — ,  U.  S.  Navy,  having  been  ordered  to  report 
to  you  on  July  — ,  19 — ,  for  examination  preliminary  to  promotion,  the  bureau, 
in  accordance  with  the  requirements  of  section  632,  Naval  Courts  and  Boards, 
transmits  herewith  all  matter  on  the  files  and  records  of  the  Navy  Department 
which  relate  in  any  way  to  his  fitness  for  promotion,  viz : 
One  record  of  service. 
Twenty-two  reports  on  fitness  of  officers. 

RECORD  OF  SERVICE  OF  LIEUTENANT  S —          -  P.  L ,  U.  S.   NAVY. 

(Since  last  examination.) 

19 — .  To  examination  for  promotion,  Washington,  May  — ,  and  return.  (On 
the  Tennessee.) 

19 — ,  May  — .  Promoted  to  lieutenant. 

19 — ,  January  — .  Detached  and  to  the  Washinyton.    Etc. 

SUPERVISORY  BOARD. 

657  to  662 

Procedure:  No  record  need  be  kept  of  proceedings.  See  p.  447  for  form 
of  candidate's  waiver  and  board's  certificate  to  be  forwarded  with  examination 
papers. 

660  to  662 

FORM  TO  BE  USED  BY  THE  STATUTORY  BOARD  THAT  DETERMINES  WHETHER 
OR  NOT  AN  OFFICER  EXAMINED  BEFORE  A  SUPERVISORY  BOARD  IS  QUALI- 
FIED FOR  PROMOTION. 

NAVAL  EXAMINING  BOARD, 
Navy  Yard,  Washington,  D.  C.,  July  21,  19. — . 

The  board  met  at  1.0  a.  m.,  July  12,  19 — ,  pursuant  to  an  order, 
copy  prefixed  marked  "A." 

Present : 

Eear  Admiral  A B.  C ,  U.  S.  Navy ; 

Captain  D E.  F ,  U.  S.  Navy;  and 

Captain  G H.  K ,  U.  S.  Navy,  members;  and 

Lieutenant  L —  M.  N ,  U.  S.  Navy,  recorder. 

The  board  convened  for  consideration  of  the  case  of  Ensign 
P Q.  R ,  whose  written  professional  examination  pre- 
liminary to  his  promotion  had  been  conducted  by  a  supervisory 
board  on  the  U.  S.  S.  Texas,  at . 


The  recorder  read  the  precept. 

The  board  and  the  recorder  were  duly  sworn. 


PROCEDURE  FOR  COURTS  AND  BOARDS.  445 

Certain  papers  received  from  the  supervisory  board,  which  show 
that  the  candidate  had  no  objection  to  having  his  examination  con- 
ducted by  the  Naval  Examining  Board  at  Washington,  D.  C.,  and  that 
he  waived  his  right  to  appear  in  person  before  said  board,  are  ap- 
pended, marked  "-  "  to  "- 

The   written  examination  of  the  candidate  is  appended,   pages 


A  communication,  appended,  marked  " ,"  was  received  from 

the  Navy  Department  transmitting  the  papers  named  therein,  which 
were  duly  considered  by  the  board  and  which,  with  the  exception 
of  those  intended  for  the  Medical  Board,  are  appended,  marked 
«_  _"to"-  — ." 

The  board,  having  deliberated  on  the  evidence  before  it,  decided 
that  the  mental,  moral,  and  professional  fitness  of  the  candidate  to 
perform  all  his  duties  at  sea  has  been  established  to  its  satisfaction. 
We  hereby  certify  that  Ensign  P —  -  Q.  R —  — ,  U.  S.  Navy, 
has  the  mental,  moral,  and  professional  qualifications  to  perform 
efficiently  all  the  duties,  both  at  sea  and  on  shore,  of  the  grade  to 

which  he  is  to  be  promoted,  to  wit ,  and  recommend  him  for 

promotion. 

A—       -  B.  C—     — , 
Rear  Admiral,  U.  S.  Navy,  President. 

D—       -  E.  F—     — , 
Captain,  U.  S.  Navy,  Member. 

G- H.  K- , 

Captain,  U.  S.  Navy,  Member. 

L M.  N- , 

Lieutenant,  U.  S.  Navy,  Recorder. 

' 

LETTER  DIRECTING  AN  OFFICER  TO  APPOINT  A   SUPERVISORY  BOARD. 

From :  Secretary  of  the  Navy. 

To:  Commander  in  Chief,  United  States  Asiatic  Fleet. 

Subject:  Supervisory  board  for  the  examination,  preliminary  to  promotion,  of 
such  officers  as  may  be  ordered  to  report  for  such  examination. 

1.  You  are  directed  to  appoint  a  board,  consisting  of  three  officers,  to  super- 
vise the  written  professional  examination,  preliminary  to  promotion,  of  such 
officers  as  may  be  ordered  to  report  for  such  examination.     The  board  will 
ask   the    candidates   if   they    have    any    objection    to    the    Naval    Examining 
Board  at  the  navy  yard,  AVashington,  D.  C.,  which  will  be  ordered  to  conduct 
their  professional  examination  and  to  make  a  final  recommendation  in  their 
cases  to  the  department ;  and  if  they  have  no  objection,  they  will  be  permitted 
to  waive  their  right  to  appear  in  person  before  said  board,  as  conferred  by  sec- 
tion 1500  of  the  Revised  Statutes,  said  waivers  to  be  sworn  to  and  to  be  at- 
tached to  the  examination  papers  of  the  candidate,  and  to  be  in  accordance 
with  the  form  prescribed  by  Naval  Courts  and  Boards,  p.  447. 

2.  Upon  the  completion  of  the  examination,  a  certificate  signed  by  each  mem- 
ber of  the  board  will  be  attached  to  the  papers  in  each  case,  stating  whether 


446  PROCEDURE  FOR  COURTS  AND  BOARDS. 

or  not  the  candidate  has  any  objection  to  his  examination  for  promotion  being 
conducted  by  the  Naval  Examining  Board,  navy  yard,  Washington,  D.  C.,  and 
that  he  received  no  outside  assistance  during  its  progress.  The  board  will 
forward  the  papers  by  registered  mail  in  a  sealed  envelope,  marked  "  Confi- 
dential," to  the  "  President  Naval  Examining  Board,  navy  yard,  Washington, 
D.  C." 

3.  You  will  direct  these  officers,  if  they  waive  their  right  to  appear  in  person 
before  the  Naval  Examining  Board  as  outlined  above,  to  report  to  the  super- 
visory board  for  professional  examination,  preliminary  to  promotion,  and  in 
any  event  you  will  direct  them  to  report  to  the  Board  of  Medical  Examiners 
for  physical  examination,  preliminary  to  promotion. 

4.  The  supervisory  board  will  remain  in  force  until  further  orders,  and  if 
any  member  of  that  board  is  relieved  or  detached,  you  are  hereby  authorized 
to  appoint  new  members  to  take  the  places  left  vacant. 

PRECEPT    CONVENING    SUPERVISORY    EXAMINING    BOARD. 

UNITED  STATES  ASIATIC  FLEET, 

U.  S.  S.  — ,  FLAGSHIP, 

,  July  2,  10—. 

From :  Commander  in  Chief. 

To:  Lieutenant  Commander  E —      -  C.  K—    — ,  U.  S.  Navy,  U.  S.  S.  Texas t 

via  commanding  officer. 
Subject :  Convening  supervisory  examining  board. 

1.  A  supervisory  board  for  the  examination,  preliminary  to  promotion,  of 
such  officers  as  may  be  ordered  before  it  is  hereby  ordered  to  convene  on  board 

the  U.  S.  .S.  -  at  -  — ,  at  10.00  o'clock  a.  m.,  Tuesday,  July  — , 

19 — ,  or  as  soon  thereafter  as  may  be  practicable. 

2.  The  board  will  consist  of  yourself  as  president  and  of  Lieutenant  (junior 
grade)  F R.  K ,  U.  S.  Navy,  and  Lieutenant  (junior  grade)  H — 

P.  L as  members.    Lieutenant  (junior  grade)  H —      -  P.  L —    — ,  U.  S. 

Navy,  will  act  as  recorder. 

3.  The  board  will  ask  the  candidates  if  they  have  any  objection  to  the  naval 
examining  board  at  the  navy  yard,  Washington,  D.  C.,  which  will  be  ordered 
to  conduct'  their  professional  examination  and  to  make  a  final  recommendation 
in  their  cases  to  the  department ;  and  if  they  have  no  objection  they  will  be 
permitted  to  waive  their  right  to  appear  in  person  before  the  board,  as  con- 
ferred by  section  1500  of  the  Revised  Statutes,  said  waiver  to  be  sworn  to,  to 
be  attached  to  the  examination  papers,  and  to  be  in  accordance  with  the  form 
prescribed  in  Naval  Courts  and  Boards,  p.  447. 

4.  Upon  the  completion  of  the  examination  a  certificate  signed  by  each  mem- 
ber of  the  board  will  be  attached  to  the  papers  stating  whether  or  not  each  can- 
didate has  any  objection  to  his  examination  being  conducted  by  the  naval  ex- 
amining board,  navy  yard,  Washington,  D.  C.,  and  that  he  has  received  no 
unauthorized  assistance  during  its  progress.    The  board  will  forward  the  papers 
by  registered  mail  in  a  sealed  envelope  marked  "Confidential"  to  "President 
naval  examining  board,  navy  yard,  Washington,  D.  C." 

5.  The  procedure  of  the  board  shall  be  in  accordance  with  section  661,  Naval 
Courts  and  Boards. 

657  to  659 

LETTER  TO  CANDIDATE  FOR  PROMOTION  ORDERED  BEFORE  A  SUPERVISORY 

BOARD. 

From :  Bureau  of  Navigation. 

To :  Ensign  P —     -  Q.  R —    — ,  U.  S.  Navy,  U.  S.  S. ,  via  Commanding 

Officer. 


PROCEDURE  FOR  COURTS  AND  BOARDS.  447 

Subject :  Examination  for  promotion. 

1.  As  soon  as  practicable  after  the  receipt  of  the  necessary  questions  and 
papers,  and  when  directed  by  your  commanding  officer,  you  will  report  to  the 
president  of  a  board  of  medical  examiners  for  examination,  preliminary  to  pro- 
motion to  the  grade  of ,  in  accordance  with  section  1493  of  the  Revised 

Statutes. 

2.  Upon  the  completion  of  this  examination,  or  when  otherwise  directed  by 
proper  authority,  you  will  report  to  your  commanding  officer  for  a  supervisory 
examination  in  accordance  with  section  1496  of  the  Revised  Statutes. 

3.  The  statutory  board  which  will  finally  determine  your  fitness  for  promo- 
tion will  meet  upon  your  case  at ,  -     — ,  on ,  or  as  soon  thereafter 

as  may  be  practicable. 

4.  This  is  in  addition  to  your  present  duties. 

657 

FORM  FOR  WAIVER  TO  BE  EXECUTED  BY  CANDIDATE  BEFORE  SUPERVISORY 

BOARD. 

U.  S.  S.  TEXAS, 

Navy  Yard,  New  York,  July  — ,  19 — . 

Having  been  notified  of  the  time  and  place  of  meeting  of  the  examining  boards 
which  are  to  conduct  my  examination  for  promotion,  I  hereby  waive  all  right 
to  be  present  in  person  before,  or  to  be  heard  by,  the  Naval  Examining  Board 
which  is  finally  to  pass  on  my  case,  and  I  further  hereby  waive  all  right  to  be 
given  opportunity,  in  any  manner  whatsoever,  to  personally  appear  before  that 
board.  In  taking  this  action  I  am  fully  cognizant  of  my  rights  in  the  premises, 
under  section  1500  of  the  Revised  Statutes,  including  the  right  to  appear  in 
person  before  that  board,  and  the  penalties  to  be  suffered  by  me  in  case  the 
said  Naval  Examining  Board  finds  me  not  qualified  for  promotion. 

P—      -  Q.  R—    — 

Ensign,  U.  S.  Navy. 
Subscribed  and  sworn  to  before  me  this day  of  July,  19 — . 

T^ f\      T£' 

Lieutenant  Commander,  U.  S.  Navy, 
President,  Supervisory  Examining  Board. 

661 

CERTIFICATE  OF  SUPERVISORY  BOARD  TO  THE  EFFECT  THAT  THE  CANDIDATE 
RECEIVED  NO  UNAUTHORIZED  ASSISTANCE  DURING  THE  EXAMINATION. 

U.  S.  S.  TEXAS, 

Navy  Yard,  New  York,  July  — ,  19 — . 

The  candidate  stated  that  he  had  no  objection  to  his  examination  being  con- 
ducted by  the  Naval  Examining  Board,  navy  yard,  Washington,  D.  C.,  and  it 
is  hereby  certified  that  he  received  no  unauthorized  assistance  during  the  prog- 
ress of  the  examination. 

Lieutenant  Commander,  U.  S.  Navy,  President. 

F—      -  R.  K—    — , 
Lieutenant  (j.g.)  U.  S.  Navy,  Member. 

P       T  

JL  .     -LJ  , 

Lieutenant  (j.g.)  U.  8.  Navy,  Member  and  Recorder. 
662 


' 


VIII. 
BOARDS  OF  MEDICAL  EXAMINERS. 

(Chapter  XIX— Part  I.) 


449 


.IIIY 

jd 


BOAKDS  OF  MEDICAL  EXAMINERS. 


RECORD  OF  PROCEEDINGS 

OF   A 

BOARD  OF  MEDICAL  EXAMINERS 

CONVENED   AT 


THE  NAVY  YARD,  MAEE  ISLAND,  CAL, 

Var. — On  board  the  U.  S.  S.  New  York, 
IN    THE    CASE    OF 

LIEUTENANT  II C.  E^ ,  U.  S.  NAVT. 

JULY  31,  19—. 

82  to  92 

- 
Precept :  See  form,  p.  453. 

• 

676;  651 

9 

BOARD  OF  MEDICAL  EXAMINERS, 
Navy  Yard,  Mare  Island,  Col.,  August  1,  19 — .     • 

fi7fi  •  fi4-fi 
' 

The  board  met  at  10  a.  m.,  July  31, 19—  (this  day),  pursuant  to  an 
order,  copy  prefixed,  marked  "A." 

(See  Variation,  page  437.) 

Present : 

Medical  Inspector  C—        -  B.  A —     — ,  U.  S.  Navy ; 

Surgeon  F—       -  E.  D—     — ,  U.  S.  Navy ;  and 

Passed  Assistant  Surgeon  K—  -  H.  G—  — ,  U.  S.  Navy,  mem- 
bers; and 

Assistant  Surgeon  N — M.  L ,  U.  S.  Navy,  recorder. 

DCK 

bbO 

451 


452  PROCEDURE  FOR  COURTS  AND  BOARDS. 

Lieut.  H C.  E—  — ,  IT.  S.'  Navy,  reported  for  examination 

in  obedience  to  an  order,  copy  prefixed,  marked  "  B." 

The  precept  was  read  by  the  recorder  an$  there  was  no  objection  to 
any  member. 

(See  Variation,  page  1^38.) 

The  board  and  the  recorder  were  duly  sworn. 

669;  636  to  637 

The  candidate's  statement  as  to  his  physical  qualifications  is  ap- 
pended, marked  "  C." 

672 

The  medical  history  of  the  candidate  is  appended,  marked  "  D." 

671 

Each  member  of  the  board  then  made  a  careful  physical  examina- 
tion of  the  candidate  and  found  no  trace  of  any  ailment  or  dis- 
ability now  existing. 

670 

Var.  1. examination  of  the  candidate,  giving  special  attention  to 

the  following  entries  contained  in  his  medical  history,  viz,  febris  continua 
simplex,  vulnus  punctum,  etc.,  and  found  no  trace  of  any  ailment  or  disability 
now  existing. 

Var.  2. and  found  that  he  is  suffering  from contracted  (not) 

in  line  of  duty. 

Var.  8. — Each  member  of  the  board  then  made  a  careful  physical  examina- 
tion of  the  candidate  and  found  that  he  has  recovered  from  the  ailment  noted  in 
his  medical  record  for  the  period  since  January  — ,  19 — ;  that  he  has  lost  his 
left  leg  at  the  knee;  that  such  disability  was  occasioned  by  a  wound  received 
in  the  line  of  his  duty;  and  that  it  does  not  incapacitate  him  for  other  than 
sea  duties  in  the  grade  to  which  he  is  to  be  promoted ;  that  there  is  no  other, 
disability  now  existing. 

Var.  4. — Each  member  of  the  board  then  made  a  careful  physical  examination 
of  the  candidate  and  found  that  he  is  deficient  in  weight  and  mean  chest 
measurement,  according  to  the  prescribed  naval  standard — height  67  inches, 
weight  130  pounds  (2  pounds  underweight),  mean  chest  circumference  33  inches 
(1  inch  under  standard). 

We  hereby  certify  that  Lieutenant  H C.  E ,  U.  S. 

Navy,  is  physically  qualified  to  perform  all  his  duties  at  sea,  and 
recommend  him  for  promotion. 

673 

y     p     ry    Vv     TT  _ 

Var.  .*.— We  hereby  certify  that  Lieutenant  H C.  E—    — ,  U.  S.  Navy, 

is  incapacitated  for  service  by  reason  of  (state  the  physical  disability)  con- 
tracted (not)  in  the  line  of  duty,  and  he  is  therefore  not  qualified  to  perform 
all  his  duties  at  sea,  and  we  do  not  recommend  him  for  promotion. 

674;  675 


PROCEDURE  FOR  COURTS  AND  BOARDS.  453 

Var.  2. — We  hereby  certify  that  Lieutenant  H —  -  C.  E —  — ,  U.  S.  Navy, 
is  not  physically  qualified  to  perform  all  his  duties  at  sea  owing  to  -  — ,  and 
we  recommend  that  he  be  further  examined  physically  in  -  -  months  in 
order  to  ascertain  the  extent  of  his  incapacity. 

673 

Var.  8. — We  hereby  certify  that is  physically  qualified  to  perform  all 

his  duties  except  those  at  sea,  and  recommend  him  for  promotion  jn  accordance 
with  the  provisions  of  section  1494  of  the  Revised  Statutes. 

664 

In  the  case  of  a  candidate  for  appointment : 

Var.  4. — We  hereby  certify  that  Mr. is  (not)  physically  quali- 
fied for  admission  to  the  United  States  Navy  as  an  assistant  paymaster  (as- 
sistant surgeon),  (or,  as  the  case  may  be)  and  do  (not)  recommend  him  for 
appointment. 

673 

Var.  5. — We  hereby  certify  that  should  the  Secretary  of  the  Navy  waive  the 
above  2  pounds  under  standard  weight  and  1  inch  under  standard  chest  cir- 
cumference, -  — ,  M.  D.,  is  physically  qualified  for  admission  to  the 
United  States  Navy  as  an  assistant  surgeon  in  the  Medical  Reserve  Corps,  and 
recommend  him  for  appointment. 


667 


B.  A- 


Medical  Inspector,  U.  S.  Navy,  President. 

F —      -  E.  D —    — , 
Surgeon,  U.  S.  Navy,  Member. 

K—      -  H.  G—    — , 
Passed  Assistant  Surgeon,  U.  S.  Navy,  Member. 

N—      -  M.  L—    — , 
Assistant  Surgeon,  U.  S.  Navy,  Recorder. 

676;  650 

PRECEPT  FOR  BOARD  OF  MEDICAL,  EXAMINERS. 

NAVY  DEPARTMENT, 
Washington,  July  — ,  19 — . 

To :  Medical  Inspector  C B.  A ,  U.  S.  Navy,  Navy  Yard,  Mare  Island, 

California,  via  commandant. 

1.  A  board  of  medical  examiners,  to  examine  and  report  upon  the  physical 
qualifications  of  such  candidates  for  admission  or  promotion  as  may  be  ordered 
to  appear  before  it,  is  hereby  ordered  to  convene  at  the  navy  yard,  Mare  Island, 
California,  on  Monday,  August  1,  19 — ,  at  10  o'clock  a.  m.,  or  as  soon  thereafter 
as  practicable. 

2.  The  board  will  consist  of  yourself,  as  president,  and  of  Surgeon  F —      -  E. 

D —    — ,  and  Passed  Assistant  Surgeon  K H.  G ,  U.  S.  Navy,  as 

members.     Assistant  Surgeon  N M.  L ,  U.   S.  Navy,  will  act  as 

recorder. 


454  PROCEDURE   FOR  COURTS  AND  BOARDS. 

3.  The  proceedings  of  the  board  will  be  conducted  and  the  record  forwarded 
in  accordance  with  the  provisions  of  Naval  Courts  and  Boards. 


Secretary  of  the  Navy. 

PRECEPT  TS  BLANK. 

See  note  under  this  heading  on  page  443. 

' 

PRECEPT  FOR  MEDICAL  EXAMINER. 

NAVY  DEPARTMENT, 
Washington,  July  — ,  7.9 — . 

To :  Passed  Assistant  Surgeon  C : —  B.  A ,  U.  S.  Navy,  Medical  Exam- 
iner, Navy  Recruiting  Station,  Cleveland,  Ohio. 

1.  You  are  hereby  appointed  a  medical  examiner  to  examine  and  report  upon 
the  physical  qualifications  of  such  candidates  for  admission  to  the Re- 
serve Corps   (such  candidates  for  admission  to  the  Navy  as  acting  assistant 
surgeons)  as  assistant  (dental)  surgeons  as  may  be  authorized  to  appear  before 
you.    You  will  hold  the  examinations  at  the  Recruiting  Station,  Cleveland,  Ohio, 
on  Monday,  August  1,  19 — ,  at  10  o'clock  a.  m.,  or  as  soon  thereafter  as  prac- 
ticable. 

2.  The  proceedings  will  be  conducted  and  the  record  forwarded  in  accordance 
with  the  provisions  of  Naval  Courts  and  Boards. 

3.  Should  it  be  impracticable  for  the  medical  examiner  to  be  sworn  by  an 
officer  of  the  Navy  or  Marine  Corps  authorized  to  administer  oaths,  the  medical 
examiner  will  insert  the  following  certificate  in  the  record  of  the  proceedings 
in  each  case : 

"  I  hereby  certify  that  I  have  honestly  and  impartially  examined  and  reported 
upon  the  case  of ." 

ri.ifeftittttlfclvt&3roft  •£*  *TJ  tiw>\>-  ' 

Secretary  of  the  Navy. 

668 

CERTIFICATE   OF   CANDIDATE. 

BOARD  OF  MEDICAL  EXAMINERS, 

Navy  Yard,  Mare  Island,  California,  August  — ,  19 — . 

I  hereby  certify  that  I  am,  to  the  best  of  my  knowledge  and  belief,  physically 
qualified  to  perform  all  the  duties  at  sea  in  the  grade  for  which  I  am  a  candi- 
date for  promotion  (appointment),  and  that  I  am  at  present  free  from  all 

bodily  ailments  (except ). 

In  the  case  of  a  candidate  for  admission,  add  the  following: 
I  am  a  native-born  (naturalized)  citizen  of  the  United  States.     (If  natural- 
ized, state  when  and  where.) 

I  was  born  at  — , County,  in  the  State  of ,  on  the  —  day 

of ,  in  the  year ,  and  am  at  this  time  a  legal  resident  of  the  State 

of . 

My  home  address  is , , . 

My  local  address  is  —     — ,  -      — ,  -      — . 




Subscribed  and  sworn  to  before  me  this  —  day  of ,  A.  D.  19 — . 

C B.  A , 

Medical  Inspector,  U.  S.  Navy, 
President  Board  of  Medical  Examiners. 

672 


PROCEDURE   FOR   COURTS  AND   BOARDS.  455 

MEDICAL  HISTORY  OF  CANDIDATE. 

NAVY  DEPARTMENT, 
BUREAU  OF  MEDICINE  AND  SURGEBY, 

Washington,  July  — ,  19 — . 

Medical  record  of  Lieutenant  H —  C.  E —    — ,  U.  S.  Navy,  since  Sep- 
tember 8,  19 — . 


L.  R- 


Surgeon  General,  U.  S.  Navy. 
671 


I 


• 


IX. 

NAVAL  RETIRING  BOARDS. 

(Chapter  XX— Part  I.) 


457 


.71 

i 

MA*  T3HV 


. 

889  ;  679 

' 

XT  T»  -i-^ 

NAVAL  RETIKING  BOARDS. 


RECORD.  OF  PROCEEDINGS 

OF  A 

NAVAL  RETIRING  BOARD 

CONVENED  AT 
D9H'J  ofl'Hjqn 

THE  NAVY  YARD,  WASHINGTON,  D.  C., 

IN  THE   CASE  OF 
f^  r\  -r.     o  -r4)0J,  {l1 

CAPTAIN  Q R.  S ,  U.  S.  NAVY. 

MARCH  9,  19—. 

ocl 
82  to  92 

Precept :  Sec  form,  p.  462. 

AH 

698;  651 

NAVAL  RETIRING  BOARD, 
Navy  Yard,  Washington,  D.  C.,  March  10, 19—. 

j-)j;  'fol 

J 

The  board  met  at  10  a.  m.  March  9,  19—  (this  day),  pursuant  to 
an  order,  copy  prefixed,  marked  "A?*"': 

•')    . 8  .T 

(See  variations,  page  437.) 

Present: 

Rear  Admiral  A-     _  B.  B-     -U.S.  Navy; 

Captain  D-       -  E.  F ,  U.  S.  Navy : 

Medical  Director  R T.  S— — - ,  U.  S.  Navy; 

Captain  G-        -  H.  K-      -,  U.  S.  Navy ;  and 

Surgeon  U-       -  V.  W — ,  U.  S.  Navy,  members;  and 

Lieutenant  L M.  N ,  U.  S.  Navy,  recorder. 

679;  681  to  682 

26450°— 17 30  459 


460  PROCEDURE  FOR  COURTS  AND  BOARDS. 


Captain  Q—  -  R.  S—  — ,  IT.  S.  Navy,  reported  in  obedience 
to  an  order,  copy  prefixed,  marked  "  B." 

679;  683 

The  precept  was  read  by  the  recorder,  and  there  was  no  objection 
to  any  member. 

(See   variation,  page  438.} 

685 

The  board  and  the  recorder  were  duly  sworn. 

686  to  688 

A  communication,  appended,  marked  "  C,"  was  received  from  the 
Navy  Department,  transmitting  the  papers  named  therein,  which 

are  appended,  marked  " "  to  " " ;  those  marked  " " 

to  " ,"  inclusive,  were  read.  .(.IJI7.Y  YVAX  MHT 

The  medical  members  were  directed  to  examine  into  the  past  and 

present  physical  and  mental  condition  of  Captain  S ;  letter  of 

instructions  appended,  marked  " ." 


692 

P  ,/M 

Pending  the  physical  examination,  the  board  took  a  recess  (ad- 
journed) in  this  case  until  2  p.  m.  March  9,  19 —  (until  11.30  a.  m. 
this  day),  when  it  reconvened;  present,  the  entire  board  and  the 
officer  under  examination. 

Medical  Director  R T.  S ,  the  senior  medical  mem- 
ber of  the  board,  stated  to  the  board  that,  in  his  opinion,  Captain 

S is  suffering  from  a  chronic  inflammation  of  the  heart;  that 

his  condition  is  permanent,  by  reason  of  which  he  is  incapacitated 
for  active  service  in  the  Navy,  and  that  his  incapacity  is  (not)  the 
result  of  an  incident  of  the  service.  (Or  as  the  case  may  be. ) 

Surgeon  U V.  W ,  a  member,  stated  to  the  board  that 

he  concurred  in  the  opinion  expressed  by  Medical  Director  R- • 

T.  S .    (Or  as  the  case  may  be. ) 

' 

692 

Captain  S stated  that  he  did  not  desire  to  question  the 

medical  members,  to  introduce  evidence,  or  to  make  a  statement. 

He  was  then  discharged  from  further  attendance. 

TT O  HI*; 

ban  :a-i9<Ins  684;  692 

Var.  — .  requested  the  board  to  summon  as  witnesses  the  following 

persons.     (Insert  names.) 


PROCEDURE  FOR  COURTS  AND  BOARDS.  461 

The  request  of  Captain  8 was  granted,  and  tlie  necessary  summons 

were    issued.     Pending   the    arrival    of   the   witnesses,    the   board    adjourned 

until  . 

691 

The  board  met  March  — ,  19 — ,  pursuant  to  adjournment  of  the instant. 

Present :  The  entire  board  and  the  officer  under  examination. 

Medical   Director  C It ,      U.    S.   Navy,  a  witness   in  behalf  of 

Captain  S entered  and  was  duly  sworn. 

689 

('I't'xtinwnu  recorded  «8  for  <lcf<;,.«c  in  general  ronrt-martial.) 

The  witness  verified  his  testimony  and  withdrew. 

(The  same  procedure  is  followed  with  regard  to  all  witnesses.} 

Captain    S •    then    submitted    in    evidence    certain    papers,    appended, 

marked  " "  to  " — ." 

Or,  Captain  S desired  to  take  the  stand  as  a  witness  and  duly  sworn. 

684 

' 
Captain  S —      -  had  no  further  evidence  to  introduce.     He  withdrew,  after 

having  been  informed  that  he  would  receive  due  notification  when  he  might 
regard  himself  as  discharged  from  further  attendance  before  the  board. 

692 

• 

The  medical  members  submitted  a  report,  which  was  sworn  to, 

1  11  1         1     U  » 

read,  and  appended,  marked     . 

692 

The  board,  having  deliberated  on  the  evidence  before  it,  decided 
that  Captain  Q—  -  E.  S—  — ,  U.  S.  Navy,  is  incapacitated  for 
active  service  by  reason  of  apoplexy  (or,  as  the  case  may  be)  and 

that  his  incapacity  is  (not)  the  result  of  an  incident  of  the  service. 
if       \       / 


Rear  Admiral,  U.  S.  Navy,  President. 
D—        -  E.  F—     — , 

Captain,  U.  /S.  Navy,  Member. 

RC       rp 
b.   1 , 

Medical  Director,  U.  S.  Navy,  Member. 

G H.  K-     -, 

Captain,  U.  S.  Navy,  Member.    ' 

U V.  W-     - 

Surgeon,  U.  S.  Navy,  Member. 

L—       -  M.  N-      -, 
Lieutenant,  U.  S.  Navy,  Member. 

698;  650 


462  PROCEDURE  Ft)R  COURTS  AND  BOARDS. 

Var.  1. — The  board,  having  deliberated  on  the  evidence  Ix-f'ore  it,  decided 

that  Captain  Q R.  S ,  U.  S.  Navy,  is  temporarily  incapacitated  for 

active  service  by  reason  of  malarial  poisoning,  and  recommends  that  he  be 
granted  sick  leave  for  three  months. 

Var.  2. — The  board,  having  deliberated  on  the  evidence  before  it,  and  having 
decided  thereupon  that  prima  facie  it  appears  that  the  incapacity  of  Captain 
Q —  -  R.  S — — - — ,  U.  S.  Navy,  is  the  result  of  his  own  misconduct,  he  was 
called  before  the  board  and  given  an  opportunity  to  be  heard  upon  the  charges 
against  him,  as  follows:  (Insert  charges.) 

Captain  S- had  nothing. to  offer  in  relation  to  the  charges.  (Captain 

S was,  at  his  own  request,  called  before  the  board  and  duly  sworn  as  a 

witness.  Testimony  recorded  as  for  defense  in  a  general  court-martial.)  (Cap- 
Jain  S asked  permission  to  introduce  Mr.  J — R as  his  counsel. 

The  request  was  granted,  and  Mr.  R —  entered.) 

Or,  Captain  S requested  the  board  to  summon  the  following  persons 

as  witnesses.  (Insert  names. )  The  request  of  Captain  S was  granted  and 

the  necessary  summons  issued.  Pending  the -arrival  of  the  witnesses  the  board 
adjourned  until . 

The  board  met  March  — ,  19 — ,  pursuant  to  adjournment  of  the  —  instant. 

Present:  The  entire  board  and  the  officer  under  examination  (and  counsel). 

Medical  Inspector  C- N ,  U.  S.  Navy,  a  witness  called  by  Captain 

S ,  was  duly  sworn. 


(Testimony  recorded  as  for  defense  in  a  general  court-martial.) 

The  witness  verified  his  testimony  and  withdrew. 

Captain  S had  no  further  witnesses  to  call  and  had  nothing  further 

to  offer. 

The  board  was  then  cleared,  and,  having  deliberated  on  the  evidence  before 
it,  decided  that  Captain  Q —  -  R.  S —  — ,  U.  S.  Navy,  is  incapacitated  for 
active  service  by  reason  of  -  — ,  and  that  his  incapacity  is  not  the  result  of 
an  incident  of  the  service,  but  is  the  result  of  his  own  misconduct. 

697 

Var.  3. — The  board,   having  deliberated   on  the  evidence  before   it,   decided 

that  Captain  Q —       -  R.  S ,  U.  S.  Navy,  is  incapacitated  for  service  by 

reason  of  (state  the  physical  disability),  contracted  in  the  line  of  duty. 

694  to  696 


PRECEPT. 


NAVY  DEPARTMENT, 


JNAVY  JJEPAKTMENT, 

Washington,  March  -,  19-. 
To:  Rear  Admiral  A B.  C ,  U.  S.  Navy,  navy  yard,  Washington, 

D.  C. 

1.  A  naval  retiring  board,  consisting  of  yourself,  as  president,  and  of  Cap- 
tain D —      -  E.  F ,  U.  S.  Navy;  Medical  Director  R —      -  S.  T —    — , 

U.  S.  Navy ;  Captain  G H.  K ,  U.  S.  Navy ;  and  Surgeon  U —      -  V. 

W —     — ,  U.  S.  Navy,  as  members,  is  hereby  ordered  to  convene  at  the  navy 
yard,  Washington,  D.  C.,  at  10  a.  m.,  March  9,  19 — ,  or  as  soon  thereafter  as 

practicable. 

•  .  .    ' 

039  ;869 


PROCEDURE  FOR  COURTS  AND  BOARDS.  463 

2.  Lieutenant  L M.  X ,  U.  S.  Navy,  will  act  as  recorder. 

3.  The  board  will  examine  and  report  upon  such  officers  as  may  be  ordered 
by  the  Secretary  of  the  Navy  to  appear  before  it,  in  conformity  with  the  pro- 
visions of  Title  XV,   chapter  3,  of  the  Revised   Statutes  and  of  the  act  of 
March  4,  1911. 

4.  The  board  will  not  examine  officers  who -are  senior  to  any  non-medical 
member  of  the  board  without  specific  instructions  from  the  Secretary  of  the 
Navy  in  each  case. 

5.  The  proceedings  of  the  board  will  be  conducted  and  the  record  forwarded 
in  accordance  with  the  provisions  of  Naval  Courts  and  Boards. 


Secretary  of  Hie  Nary. 

LETTER    TO    OEETOER. 

. — 0  \ 

NAVY  DEPARTMENT, 
Wuxliinulon,  D.  C.,  March  — ,  10 — . 

To :  Captain  Q R.  S—    — ,  U.  S.  Navy. 

Subject :  Examination  for  retirement. 

1.  The  board  of  medical  examiners  before  which  you  appeared  on  February 
— ,  19 — ,  reported  as  follows: 


2.  The  findings   and   recommendation  of  the  board  were  approved   by   the 
President  on  February  — ,  19 — ,  and  you  will  therefore  proceed  to  Washington, 
D.  C.,  and  report  to  the  president  of  the  Naval  Retiring  Board  at  the  navy 
yard,  at  10  a.  m.,  March  — ,  19 — ,  for  examination  in  conformity  with  Title  XV, 
chapter  3  of  the  Revised  Statutes  and  the  act  of  March  4,  1911. 

3.  Upon  the  completion  of  this  duty,  await  orders  at  Washington,  D.  C. 

Var.  — .  When  incapacity  has  developed  before  officer  became  due  for  pro- 
motion.— You  will  proceed  to  Washington,  D.  C.,  and  report  to  the  president  of 
the  Naval  Retiring  Board  at  the  navy  yard,  at  10  a.  m.,  March  — ,  19 — ,  for 
examination  in  conformity  with  Title  XV,  chapter  3  of  the  Revised  Statutes,  etc. 

LETTER  TRANSMITTING  PAPERS  TO  BOARD. 

NAVY  DEPARTMENT, 

BUBEAU  OF  NAVGATION, 
Washington,  D.  C.,  March  — ,  19 — . 

To :  President  Naval  Retiring  Board,  navy  yard,  Washington,  D.  C. 
Subject :  Transmitting  papers  in  the  case  of  Captain  Q R.  S ,  U.  S. 

Navy. 
Inclosures:  3. 

1.  Captain  Q R.  S ,  U.  S.  Navy,  having  been  ordered  to  report 

to  you  for  examination  in  conformity  with  Title  XV,  chapter  3  of  the  Revised 
Statutes  and  the  act  of  March  4,  1911,  the  bureau  transmits  herewith  all  matter 
found  on  the  files  and  records  of  the  department  which  relates  in  any  way  to 
his  physical  or  mental  condition,  viz : 

One  memorandum  from  the  Judge  Advocate  General  of  the  Navy,  dated 
February  — ,  19 — ,  and  papers  mentioned  therein. 

One  record  of  service  and  one  medical  record. 


464  PROCEDUKE  FOR  COURTS  AND  BOARDS. 

NAVY  DEPARTMENT, 

BUREAU  OF  NAVIGATION, 
Washington,  D.  C\,  February  — ,  19— . 

Record  of  service  of  Captain  Q R.  S — ,  U.  S.  Navy : 

19 — ,  May  22 :  Appointed  midshipman  from  North  Dakota. 


19 — ,  June  1  :  Detached  June  6,  and  to  the  Texan. 


NAVY  DEPARTMENT, 
BUREAU  OF  MEDICINE  ANb  SURGERY, 
Washington,  D.  C.,  February  — ,  J9 — . 

Medical  record  of  Captain  Q —       -  R.  S ,  U.  S.  Navy,  since  August 

-,  19—. 





Surgeon  General,  U.  S.  Navy. 

NAVY  DEPARTMENT, 
OFFICE  OF  THE  JUDGE  ADVOCATE  GENERAL, 

Washington,  February  —  ,  19  —  . 
Memorandum  to  the  Bureau  of  Navigation. 

Referring  to  the  bureau's  memorandum  No.  —  ,  of  February  —  ,  19  —  ,  inform- 
ing this  office  that  Captain  Q  -  R.  S  -  -,  U.  S.  Navy»  has  been  ordered 
to  appear  before  a  naval  retiring  board,  the  bureau  is  informed  that  nothing 
is  found  of  record  in  this  office  relating  in  any  way  to  the  physical  or  mental 
condition  of  said  officer  except  the  record  of  proceedings  of  a  board  of  medical 
examiners,  which  Is  transmitted  herewith  (or,  as  the  case  may  be). 

'  —  •  ~—  . 

LETTER   TO    MEDICAL   MEMBERS    OF   BOARD   DIRECTING   PHTSICAL   EXAMI- 

NATION. 


NAVAL  RETIRING  BOABD, 
Navy  Yard,  Washington,  March  —  ,  19  —  , 
From  :  President  Naval  Retiring  Board, 
To:  Medical  Director  R  -  S.  T—  —  —  ,  U,  S,  Navy,  and  Surgeon  U.    •  <••    V. 

W  -  ,  U.  S.  Navy. 
Subject  :  Examination  of  Captain  Q  -  R.  S  -  ,  U.  S.  Navy. 

1.  You  will  make  a  careful  examination  into  the  past  and  present  physical 
and  mental  condition  of  Captain  Q  -  R.  S  -  ,  U.  S.  Navy,  whose  case 
has  been  referred  to  this  board  for  examination,  and  report  as  to  his  capacity 
to  perform  the  duties  appropriate  to  his  commission,  in  conformity  with  Title 
XV,  chapter  3,  of  the  Revised  Statutes  and  the  act  of  March  4,  1911. 

2.  Besides  a  personal  examination,  you  will  examine  closely  all  matter  trans- 
mitted to  the  board  in  this  case  by  the  Bureau  of  Navigation  from  the  files 
and  records  of  the  Navy  Department,  and  you  will  also  endeavor  to  obtain 


PROCEDURE  FOR  COURTS  AND  BOARDS.  465 

from  any  other  authentic  source  within  your  reach  such  information  as  will 
aid  the  board  in  the  performance  of  its  duties.  This  information  you  will  be 
prepared  to  impart  to  the  board  orally,  in  the  form  of  an  opinion.  After  hav- 
ing heard  the  evidence  of  the  officer  undergoing  examination,  in  case  he  cares 
to  introduce  such  evidence,  you  will  then  report  in  writing,  which  shall  be  in 
the  form  of  a  sworn  statement. 

3.  In  case  you  find  the  officer  under  examination  incapacitated  for  active 
service  you  will  state  whether,  in  your  opinion,  his  disability  is  the  result  of 
an  incident  of  the  service  (whether  his  incapacity  was,  or  was  not,  contracted 
in  the  line  of  duty). 

A—      -  B.  C—    — . 

LETTER   FROM    MEDICAL   MEMBERS   TO   PRESIDENT    OF   BOARD. 

NAVAL  RETIRING  BOARD, 
Navy  Yard,  Washington,  D.  C.,  March  — ,  19 — . 

From :  Medical  Director  R —     -  S.  T : — ,  U.  S.  Navy,  and  Surgeon  U— 

V.  W—    — ,  U.  S.  Navy. 
To :  President  Naval  Retiring  Board. 

Subject :  Examination  of  Captain  Q R.  S ,  U.  S.  Navy. 

1.  We  have  carefully  and  separately  examined  Captain  Q R.  S , 

as  to  his  past  and  present  mental  and  physical  condition,  together  with  the 
records  pertaining  to  his  case,  and  report  as  follows : 

Captain  S is  —  years  old  and  has  been  —  years  in  the  naval  service. 

He  has  suffered  from  some  of  the  common  ailments,  including ,  which 

are  shown  to  have  originated  in  the  line  of  duty  (and  with ,  which  are 

shown  not  to  have  so  originated).  The  foregoing  ailments  have  no  bearing 
(have  the  following  bearing)  on  his  present  condition. 

On  July  — ,  19 — ,  he  was  transferred  from  the  Texas  to  the  Naval  Hospital, 
Norfolk,  Va.,  with  heart  disease,  which  originated  in  the  line  of  duty.  (The 
medical  history  should  be  here  set  forth  in  full. ) 

We  believe  him  to  be  suffering  from  a  chronic  inflammation  of  the  heart. 
We  consider  this  condition  to  be  permanent,  by  reason  of  which  he  is  in- 
capacitated for  active  service  in  the  Navy,  and  that  his  incapacity  is  (not)  the 
result  of  an  incident  of  the  service. 

R S.  T—    — , 

Medical  Director,  U.  S.  Navy. 

U V.  W , 

Surgeon,  U.  S.  Navy. 
Sworn  to  and  subscribed  before  me,  March  — ,  19 — . 

T>      p 

JJ.    \J  , 

Rear  Admiral,  U.  S.  Navy,  President  of  Board. 
692 

Var.  1. — We  find  that  is  suffering  from  neurasthenia,  which,  by  the 

records,  is  shown  to  have  originated  in  the  line  of  duty. 

We  consider  this  condition  to  be  temporary  and,  therefore,  he  is  not  per- 
manently incapacitated  for  active  service  in  the  Navy.  We  find  that  he  is  at 
present  unfit  for  duty,  and  recommend  that  he  be  ordered  to  a  naval  hospital 
for  treatment  and  further  observation. 


466  PROCEDURE   FOR  COURTS  AND  BOARDS. 

llflpr.  2. .  We  find  that  he  is  at  present  unlit  lor  duty,  and  recom- 
mend that  he  be  granted  sick  leave  for  three  months. 

Var.  3. .  We  therefore  find  that  is  not  incapacitated  for 

active  service. 

Var.  J,.—lf  the  officer  is  being  examined  because  of  failure  to  qualify  physi- 
cally for  promotion: 

We  consider  this  condition  to  be  permanent,  by  reason  of  which  he  is  in- 
capacitated for  service  in  the  Na\y,  and  that  his  incapacity  was  (not)  con- 
tracted in  the  line  of  duty. 

694 

. 

'.<!"" 

. 

' 
,      __ 

.^7BT/L  .8  JJ  , 8  .JI 

)i   

•        i 
• 

*• 

il-Ail'ff  . 

.i-jiilv/  ,— 

• 


• 

. 

U 

jr-  -0" 

' 
. 

_ 

sea 

: 

' 


X. 

MARINE  EXAMINING  BOARDS. 

(Chapter  XXI— Part  I.) 


467 


MHAOfl  Dtt/IMAM  37 

(.1  ru/I  —  i. 


MARINE  EXAMINING  BOARDS. 


RECORD  OF  PROCEEDINGS 

OF  A 

*  I     * 

MARINE  EXAMINING  BOARD 

CONVENED  AT 

THE  MARINE  BARRACKS,  NAVY  YARD,  MARE  ISLAND, 

CAL., 

IN  THE  CASE  OF 

FIRST  LIEUTENANT  X Y.  Z ,  U.  S.  MARINE  CORPS. 

AUGUST  16,  19 — . 

82  to  92 

Precept :  See  form,  p.  475. 
737;  601 

EXAMINING  BOARD  BOOM,  MARINE  BARRACKS, 
Navy  Yard,  Mare  Island,  Cal,,  August  %3, 19—*. 

737;  646 

The  board  met  at  10  a.  m.,  August  16, 19—,  pursuant  to  an  order; 
copy  prefixed,  marked  "A," 
(See  variation,  p.  ^37.) 
Present: 

Major  A— B.  C—  — ,  U.  S.  Marine  Corps; 

Major  D—       -  E.  F-      — .  U.  S.  Marine  Corps; 
Surgeon  G— ~  H.  K— - ,  U,  S.  Navy; 
Surgeon  L— -  M.  N-     — ,  U.  S.  Navy;  and 

Captain  O —  P.  Q ,  U.  S.  Marine  Corps,  members;  and 

First  Lieutenant  R S.  T— ,  U.  S.  Marine  Corps,  recorder. 


469 


470  PROCEDURE   FOR  COURTS  AND  BOARDS. 

Var.  1. — Major  D —  -  E.  F —  — ,  U.  S.  Marine  Corps,  a  member,  was 
absent  on  account  of  illness  (or  other  cause).  In  view  of  the  fact  that  this 
was  only  temporary  in  its  nature,  the  board  adjourned  to  meet  the  following 
day. 

The  board  met  at  10  a.  m.,  August  17,  19 — . 

Present:  All  the  members  and  the  recorder. 

Var.  2. — Major  D —  -  E.  F —  — ,  IT.  S.  Marine  Corps,  a  member,  was 
absent  on  account  of  illness  (or  otJicr  rrr//.vr),  which  would  prevent  his  attend- 
ance for  an  indefinite  time.  The  president,  therefore,  addressed  a  letter  to 
the  convening  authority  in  the  matter,  and  the  board  then  adjourned  to  await 
his  further  action  in  the  premises., ,  Copy ( of  letter  appended,  marked  " 


First  Lieutenant  X—  Y.  Z  -  ,  U.  S.  Marine  Corps,  re- 

ported   for    examination    in    obedience    to    orders,,  copy    prefixed, 


706;  6*2 

The  precept  (and  orders  altering  the  same  were)  was  (were)  read 
by  the  recorder,  and  there  was  no  objection  to  any  member. 

(See  'variation  under  Naval  Examining  Board,  p.  438.) 

707;  631 
The  board  and  the  recorder  were  duly  sworn. 

708;  709 

The  candidate  stated  that  he  was  ready  for  examination. 
The  recorder  read  the  medical  record  of  the  candidate;  appended, 
marked  «  C." 

715 

The  candidate  submitted  a  certificate,  appended,  marked  "D,''  as 
to  his  physical  qualifications. 

738:787 

The  candidate  was  then  directed  to  report  to  the  board  of  medical 
examiners  for  physical  examination,  pending  which  the  board  took 
a  recess. 

713;  744  tq  745 

The  board  reassenlbled.  Present:  All  the  members,  the  recorder, 
and  the  candidate. 

The  report  of  the  board  of  medical  examiners  that  the  candidate 
is  physically  qualified  for  promotion,  was  read  by  the  recorder, 
adopted  by  the  board,  and  appended,  marked  "E."  The  medical 
officers  were  excused  from  further  attendance. 

713;  714;  716 


PROCEDURE  FOR  COURTS  AND  BOARDS.  471 

Few.— The  report  of  the  medical  oflicers,  that  the  candidate  is  not  physically 
qualified  for  promotion,  was  read  by  the  recorder,  concurred  in  by  the  full 

board,  and  appended,  marked  " ."     The  board  then  resolved  itself  into 

n.  retiring  board.     {Proceed  as  in  a  marine  retiring  board.) 

718 


The  hoard  then  proceeded  with  the  moral  and  professional  ex- 
amination of  the  candidate  as  follows : 

A  communication,  appended,  marked  " ,"  was  received  from 

the  Commandant  of  the  Marine  Corps,  transmitting  the  papers 
named  therein,  which  were  duly  considered  by  the  board,  and 
which  are  appended,  marked  "—  "  to  " ."  ,i  q 

707;  632  to  633 

Yar—  The   board    was    cleared.     (.1/7    persons    slid II-    irithdraiv    except    the 

-,       j  \ 
board.) 

The  board  was  opened.  The  candidate  entered  and  was  informed  that  his 
mark  in  general  efficiency  was  unsatisfactory  (his  moral  fitness  was  not  as- 
sumed) owing  to  the  following  adverse  evidence  of  record,  which  was  read  by 
the  recorder : 

720;  730 

Copy  of  general  court-martial  order,  dated  June  — ,  19 — ;  marked  " — ." 
Copy  of  letter  of  reprimand  from  the  Secretary  of  the  Navy,  dated  June  — , 
19 — ;   marked   " — ." 


Report   by  Colonel 


,   U.   S.   Marine  Corps,   commanding  First 

Islands,  dated  May  —  19—;  marked  "  — ." 


Brigade  of  Marines,  Philippine , „       ,  —      , r-f 

*  *  *  'W*  >>  *  *  * 

The  candidate  was  informed  that  he  would  be  heard  upon  the  foregoing  mat- 
ters, and  he  asked  permission  to  introduce  P Q as  a  witness, 

which  request  was  granted.    The  witness  entered  and  was  duly  sworn. 

87io 

(Record  testimony  us  for  ilcfc-iiw  in  a  ycncrnl  court-martial.) 
First  Lieutenant  Z —      -  had  nothing  further  to  offer.     (Or,  First  Lieutenant 
Z —      -  was,  at  his  own  request,  called  as  a  witness  in  his  behalf,  and  duly 

swrorn. ) 

A          ±   -c-    a   i  •     A        iii  H  .JitajL.          i  111-  !i  j 

August  17.  Subject,  administration:   began,  11. lo   a.  m. :   ended, 

10  on 
IZ.oU  p.  ill. 

*  .    -i>r    o   -i  •     i"bi  ^W  i   ,•  i     •'       v          i 

August  17.  Subject,  drill  regulations  and  signaling:   began,  1.30 

.to  J         5  to  to  to?          to        j       . 

p.  m. ;  ended,  2.25  p.  m. 

1  5  I 

August  17.  Subject,  firing  regulations;  began,  2.30  p.  m. ;  ended, 
4  p.  m. 

The  candidate  was  then  directed  to  proceed  at  daylight  (or  ax 
may  be)  the  following  morning  to  make  a  road  (  or  position)  sketch 
(locality  assigned)  and  to  bring  the  same  before  the  board  at  9  a.  m. 
the  next  morning,  which  direction  was  complied  with. 


472  PROCEDURE    FOR   COURTS  AND   BOARDS. 

August  18.  Subject,  completing  road  sketch;  began,  9  a.  m. ;  ended, 
11  a.  m. 

August  18.  Subject,  fire  discipline;   began,   11.05   a.   m.;   ended, 

1O  1  K. 

iz.io  p.  m. 

Var. — The  oral  examination  of  the  candidate  in  tire  discipline  was  unsatis- 
factory, and  the  board,  therefore,  proceeded  with  a  written  examination  in 
that  subject ;  appended,  marked  " ."  ( The  questions  asked  and  the  candi- 
date's answers  shall  be  appended  as  written.) 

August  20.  Subject,  minor  tactics;  began,  1.80  p.  m. ;  ended, 
2.30  p.  m. 

August  20.  Subject,  naval  ordnance  and  gunnery;  began,  2.35 
p.  m. ;  ended,  4  p.  m. 

88r,722  to  728 

Var. — The  candidate  presented  a  certificate  from  the  Marine  Officers'  School 

(or,  as  the  case  may  be),  dated ,  which  was  accepted  by  the  board  in  lieu 

of  professional  examination,  subject  to  the  provisions  of  section  729,  Naval 
'Courts  and  Boards.  Copy  of  certificate  is  appended,  marked  — . 

x 

729 

The  candidate  was  then  assigned  a  problem ;  the  solution  was  sub- 
mitted by  the  candidate;  appended,  marked  " ."  -.'>•%  to 

The  exercises  in  practical  drill  were  next  proceeded  with. 

A  copy  of  all  questions  asked  in  the  several  subjects,  a  description 
of  sketches  and  problems  assigned,  and  a  list  of  the  practical  maneu- 
vers explained  and  performed,  are  appended,  marked  " ." 

The  candidate  submitted  .a  certificate,  appended,  marked  " ," 

that  he  had  received  no  unauthorized  assistance. 

738 

• 

The  board  assigned  the  several  marks,  as  follows: 

707.    7Q1 

727,  731 

The  board  is  of  the  opinion  that  First  Lieutenant  X —  Y. 

Z —  — ,  U.  S.  Marine  Corps,  has  the  mental,  physical,  moral,  and 
professional  qualifications  to  perform  the  duties  of  the  next  grade 

(grades)  to  which  he  will  be  eligible,  to  wit  —  (and — ) , 

and  does,  therefore,  recommend  his  promotion  thereto. 

732  to  733 

Var.  1. has  the  mental,  physical,  and  moral  qualifications,  but  has 

not  the  professional  qualifications  to  perform  the  duties  of  the  next  grade  to 
which  he  will  be  eligible,  to  wit  -  — ,  and  does  not,  therefore,  recommend 
his  promotion  thereto.  (Or,  as  the  case  may  be.) 


PROCEDURE  FOR  COURTS  AND  BOARDS.  473 

(  \Yhcn  the  candidate  holds  the  rank  of  colonel.) 

Var.  2. —  -  has  the  mental,  physical,  and  moral  qualifications  to  per- 
form the  duties  of  the  next  grade  to  which  he  will  be  eligible,  to  wit  , 

and  does,  therefore,  recommend  his  promotion  thereto. 

712 

A B.  C . 


^  Major,  U.  8.  Marine  Corps,  President. 

D —      -  E.  F —    — , 
>  Major,  U.  8.  Marine  Corps,  Member. 

Captain,  U.  8.  Marine  Corps,  Member. 

• 

B S.  T , 

First  Lieutenant,  U.  8.  Marine  Corps,  Recorder. 

<o4: 

;     •  ' 
PRECEPT. 

N    7  -  D 

It'  T     •  ,  ,  .  ',,. 

Washington.  August  — ,  ID — . 
From:  The  Secretary  of  the  Navy. 
To:  Major  A—      -  B.  C—    — ,  U.   S.  Marine  Corps,  Marine  Barracks,  Navy 

Yard,  Mare  Island,  California,  via  commandant. 
Subject:  Convening  marine  examining  board. 

1.  A  marine  examining  board,  for  the  examination  of  such  candidates  for 
admission  or  promotion  as  may   be   directed   to   appear   before  it,   is   hereby 
ordered  to  convene  at  the  Marine  Barracks,  Navy  Yard,   Mare  Island,  Cali- 
fornia, at  10  a.  m.,  Monday,  August  — ,  19 — ,  or  as  soon  thereafter  as  prac- 
ticable 

2.  The  board  will  consist  of  yours,!  f  as  president  and  of  Major  D E. 

F ,  U.  S.  Marine  Corps;  Surgeon  G—       -  II.   K—     — ,  U.  S.  Navy;  Sur- 
geon L M.  N—     — ,  U.  S.  Navy  ;  and  Captain  O P.  Q ,  U.  S. 

Marine  Corps,  as  members. 

3.  First  Lieutenant  R-       -   S.   T-     -    U.   S.  Marine  Corps,   will   act   as 
recorder. 

4.  The  proceedings  of  the  board  will  be  conducted  and  the  record  forwarded 
in  accordance  with  the  provisions  of  Naval  Courts  and  Boards. 

705 

MEDICAL,  CERTIFICATE  OF  CANDIDATE. 

( •  \  :' 

MARINE  BARRACKS,  NAVY  YARD, 
Mare  Island,  California,  August  — ,  19 — . 

I  hereby  certify  that  I  am,  to  the  best  of  my  knowledge  and  belief,  physically 
qualified  to  perform  all  the  duties  pertaining  to  the  rank  to  which  I  am  a  candi- 
date for  promotion,  and  that  I  am  at  present  free  from  all  bodily  ailments 
(except ), 


First  Lieutenant,  U.  S,  Marine  Corps. 
738 


474  PROCEDURE  FOR  COURTS  AND  BOARDS. 

CERTIFICATE  OF  CANDIDATE  AT  CONCLUSION  OF  EXAMINATION. 

MARINE  BARRACKS,  NAVY  YARD, 

Mare  Islaml,  Cul.,  Auf/iixt  — ,  19 — . 

I  hereby  certify  that  during  my  examination  just  concluded  I  have  received 
no  assistance  from  any  unauthorized  source. 

First  Lieutenant,  U.  S.  Marine  Corps. 
738 

LETTER   FROM    PRESIDENT    TO    MEDICAL    MEMBERS    WHEN    BOARD    RESOLVES 
ITSELF   INTO   A    RETIRING  BOARD. 

MARINE  BARRACKS, 
Navy  Yard,  Mare  Island,  Cal.,  August  — ,  19 — . 

From :  Major  A B.  C ,  president  marine  examining  board. 

To :  Surgeon  G H.  K ,  U.  S.  Navy,  and  Surgeon  L M.  N —     — , 

U.  S.  Navy. 

Subject :  Examination  into  the  past  and  present  physical  condition  of  Lieutenant 
X—      -  Y.  Z ,  U.  S.  Marine  Corps. 

1.  You  will  make  a  careful  examination  into  the  past  and  present  physical 
condition  of  First  Lieutenant  X —  — -  Y.  Z —    — ,  U.  S.  Marine  Corps,,  whose 
case  has  been  referred  to  this  board  for  examination  and  report  as  to  his 
capacity  to  perform  the  duties  appropriate  to  his  commission,  in  conformity 
with  Title  XJV,  chapter  2,  of  the  Revised  Statutes  of  the  United  States. 

2.  Besides  a  personal  examination,  you  will  examine  closely  all  matter  trans- 
mitted to  the  board  in  this  case  by  the  Commandant  of  the  Marine  Corps  from 
the  files  and  records  of  his  headquarters  and  from  those  of  the  Navy  Depart- 
ment, and  you  will  also  endeavor  to  obtain  from  any  other  authentic  source 
within  your  reach  such  information  as  will  aid  the  board  in  the  performance  of 
its  duties,  and  will  report  the  result  in  writing. 

3.  In  case  you  find  the  officer  under  examination  incapacitated  for  active 
service,  you  will  state  whether,  in  your  opinion,  his  disability  is  the  result  of 
an  incident  of  the  service. 

718;  762 

. 

REPORT   OF    MEDICAL    MEMBERS    TO    BOARD    WHICH    RESOLVES    ITSELF    INTO 

RETIRING    BOARD. 

(See  form  of  report  under  marine  retiring  board,  which  shall  also 
l)e  used  by  examining  boards,  p.  481.) 

• 
' 


XL 

MARINE  RETIRING  BOARDS. 

(Chapter  XXII— Part  I.) 


475 

26450°— 17 31 


IHITH/l 


>ov 
MARINE  RETIRING  BOARDS. 


EECOKD  OF  PROCEEDINGS 

UJ  J 

OF  A 

MARINE  RETIRING  BOARD 

CONVENED  AT 

THE  MARINE  BARRACKS,  WASHINGTON,  D.  C., 

IN  THE  CASE  OF 

FIRST  LIEUTENANT  X Y.  Z -,  U.  S.  MARINE  CORPS, 

JUNE  1,  19—. 

82  to  92 

Precept :  See  form,  p.  4 80. 
767;  651 

MARINE  RETIRING  BOARD, 
Marine  Barracks,  Washington,  June  2,  19 — . 

767;  646 

The  board  met  at  10  a.  in.  June  1,  19 —  (this  day),  pursuant  to  an 
order,  copy  prefixed,  marked  "A."' 
See  Variation,  page  437.} 
Present : 

Colonel  C—       -  B.  A-      — ,  U.  S.  Marine  Corps; 
Medical  Inspector  F—        -  D —     — ,  U.  S.  Navy; 

Major  K H.  G-      —  IT.  S.  Marine  Corps; 

Major  N—        -  M.  L—     — ,  U.  S.  Marine  Corps;  and 

Surgeon  Q—       -  P.  O ,  U.  S.  Navy,  members;  and 

First  Lieutenant  T-       -  S ,  U.  S.  Marine  Corps,  recorder. 

748  to  752 

First  Lieutenant  X Y.  Z ,  U.  S.  Marine  Corps,  re- 
ported in  obedience  to  an  order,  copy  prefixed,  marked  "  B." 

746;  753 

477 


478  PROCEDURE   FOR  COURTS  AND  BOARDS. 

The  precept  was  read  by  the  recorder,  and  there  was  no  objection  to 
any  member. 

(See  Variation,  page  438.) 

755;  685 

The  board  and  the  recorder  were  duly  sworn,  \L 

757;  758 

A  communication  appended,  marked  "  C,"  was  received  from  the 
Commandant  of  the  Marine  Corps,  transmitting  the  papers  named 
therein,  which  are  appended,  marked  "  -  "  to  "  -  ."  Those 
marked  %<  --  "  to  "—  -  ,"  inclusive,  were  read. 

The  medical  officers  were  directed  to  examine  into  the  past  and 
present  physical  condition  of  First  Lieutenant  Z—  —  ,  letter  of  in- 
structions appended,  marked  " 


•I  I*////  .fc>rx/.JIJIA«'I  MZIHAM  HUT 
762 

Pending  the  physical  examination,  the  board  took  a  recess  (ad- 
journed) in  this  case  until  2  p.  m.,  June  1,  19  —  (until  11.30  a,  m., 
this  day),  when  it  reconvened;  present,  the  entire  board  and  the 
officer  under  examination. 

First  Lieutenant  X—  -  Y.  Z  —  —  ,  U.  S.  Marine  Corps,  was 
asked  whether  he  wished  to  be  retired,  and  replied  in  the  affirmative. 

763 

He  was  then  duly  sworn  as  a  witness. 

759 

Examined  by  the  recorder  (by  the  board)  : 

1.  Q.  State  the  nature  of  your  disability,  its  cause,  and  how  long 

&      j  -e         •* 
you  have  suffered  from  it. 

A     *     *     * 

-  \  .  • 

(The  witness  may  submit  a  written  statement^  to  be  read  and  ap- 

pended to  the  record.) 

#  #  *  ,   -j         *  *  *  * 

Medical  inspector  F  -  D  -  ,  U.  S.  Navy,  a  member  of  the 
board,  was  duly  sworn  : 

759 

Examined  by  the  recorder  (board)  : 

1.  Q.  Please  submit  to  the  board  the  result  of  your  examination  of 
First  Lieutenant  Z  --  . 

A.  The  witness  submitted  a  written  report,  signed  by  himself  and 
by  Surgeon  Q  --  P.  O  --  ,  U.  S.  Navy,  also  a  member  of  the 
board,  which  was  read  and  appended,  marked  "  -  ." 

IT! 


PROCEDURE   FOR   COURTS  AND  BOARDS.  479 

2.  Q.  From  what  cause  does  First  Lieutenant  Z 's  disability 

proceed  ? 
j^      *     *     * 

3.  Q.  Is  the  disability  permanent? 
A      *     *     * 

4.  Q.  Is  First  Lieutenant  Z 's  disability  such  as  to  incapaci- 
tate him  for  active  service  ? 

A.     *     *     * 

First  Lieutenant  Z—  -  stated  that  he  had  no  questions  to  ask 
(asked  the  following  questions:). 

764 

Surgeon  Q P.  O ,  IT.  S.  Navy,  a  member  of  the  board 

was  duly  sworn : 

1.  Q.  From  what  cause  does  First  Lieutenant  Z —  — 's  disability 
proceed  ? 

A.  *     *     *     etc. 

764 

(In  case  the  officer  before  the  'board  has  stated  that  he  does  not 
desire  retirement  his  examination  by  the  recorder  or  the  board  is 
postponed  until  this  point.) 

763 

- 

•  First  Lieutenant  Z stated  that  he  did  not  desire  to  rebut 

the  evidence  of  the  medical  officers,  or  to  take  the  stand  as  a  witness 
in  his  own  behalf.    He  was  then  discharged  from  further  attendance. 
Var. — See  variations  under  naval  retiring  board,  pp.  400-401. 

765;  684 

The  board,  having  deliberated  on  the  evidence  before  it,  decided 
that  First  Lieutenant  X—  -  Y.  Z—  — ,  IT.  S.  Marine  Corps,  is 

incapacitated  for  -active  service  by  reason  of (state  reason), 

and  that  his  incapacity  is   (not)   the  result  of  an  incident  of  the 
service. 

7fift 

Var.  1. —  (In  the  case  of  a  candidate  for  promotion). — The  board,  having  de- 
liberated on  the  evidence  before  it,  decided  that  Lieutenant  X —  -  Y.  Z , 

U.  S.  Marine  Corps,  is  incapacitated  for  active  service  by  reason  of  (state  the 
physical  disability)  contracted  (not)  in  the  line  of  duty. 

718;  742 

Var.  2. —  decided  that  First  Lieutenant ,  U.  S.  Marine  Corps, 

'is  not  incapacitated  for  active  service. 


480  PROCEDURE  FOR  COURTS  AND  BOARDS. 

Var.  3. decided  that  is  temporarily  incapacitated  for  active 

service  by  reason  of  malarial  poisoning,  contracted   (not)  in  line  of  duty,  and 

recommends  that  he  be  granted  sick  leave  for months. 

C P>.   A  -, 

Colonel,  U.  K.  Marine  Corps,  President. 

F —      -  D —    — , 
Medical  ]n*p«l<,;;   I  .  X.  Nftry,  Member. 

Major,  U.  8.  Marine  Corps,  Member. 

N M.  L , 

Major,  V.  >S'.  Mariiic  Corps,  Manlier. 

Q—     -  P.  O—    — 
Surgeon,  U.  8.  Navy,  Member. 

T—      -  S.  R—    — , 
First  TAeutenant,  U.  >Sf.  Marine  Corps,  Recorder. 

767 

PKECEPT. 

NAVY  DEPARTMENT, 
Washington,  May  — ,  11) — . 
From:  The  Secretary  of  the  Navy. 

To:  Colonel  C B.  A ,  U.  S.  Marine  Corps,  Marine  Barracks,  Wash- 
ington, D.  C. 
Subject :  Convening  Marine  Retiring  Board. 

1.  A  marine  retiring  board,  consisting  of  yourself  as  president,  and  of  Medi- 
cal Inspector  F D -,  U.  S.  Navy ;  Major  K H.  G ,  U.  .S. 

Marine  Corps;  Major  N M.  L —    — ,  U.  S.  Marine  Corps;  and  Surgeon 

Q P.  O ,  U.   S.  Navy,  members,  is  hereby  ordered  to  convene  at 

the  Marine  Barracks,  Washington.  D.  C.,  at  10  a.  m.  Monday,  June  1,  19 — ,  or 
as  soon  thereafter  as  may  be  practicable. 

2.  First  Lieutenant  T —   —  S.  R —    — ,  U.   S.  Marine  Corps,  will  act  as 
recorder. 

3.  The  board  will  examine  and  report  upon  such  officers  as  may  be  ordered  by 
the  Secretary  of  the  Navy  to  appear  before  it,  in  conformity  with  sections  1622 
and  1623,  and  Title  XIV,  chapter  2,  of  the  Revised  Statutes. 

4.  The  board  will  not  examine  officers  who  are  senior  to  any  non-medical 
member  of  the  board  without  specific  instructions  from 'the  Secretary  of  the 
Navy  in  each  case. 

5.  The  proceedings  of  the  board  will  be  conducted  and  the  record  forwarded 
in  accordance  with  the  provisions  of  Naval  Courts  and  Boards. 

LETTER   TO   OFFICER. 

NAVY  DEPARTMENT, 
Washington,  May  —,  19—. 
From :  Secretary  of  the  Navy. 

To :  First  Lieutenant  X Y.  Z ,  U.  S.  Marine  Corps. 

Subject :  Orders  to  appear  before  a  retiring  board. 

1.  Proceed  to  Washington,  D.  C.,  and  report  to  Colonel  C V.  A , 

U.  S.  Marine  Corps,  president  of  a  marine  retiring  board,  at  the  marine  bar- 
racks, at  10  a.  m.,  Monday,  June  1,  19 — ,  for  examination  in  conformity  with 


PROCEDURE  FOR  COURTS  AND  BOARDS.  481 

sections  1622  and  1623,  and  Title  XIV,  chapter  2,  of  the  Revised  Statutes  of 
the  United  States. 
2.  Upon  completion  of  this  duty  await  orders  at  Washington,  D.  C. 

LETTER   TO    MEDICAL      MEMBERS    OF   THE   BOARD. 

(See  letter  from  president  of  marine  examining  board  to  medical 
members  when  that  board  resolves  itself  into  a  retiring  board, 
page  4'<4-) 

REPORT  OF  THE  MEDICAL  MEMBERS  TO  THE  BOARD. 

MARINE  BARRACKS,  Washington,  June  8,  19 — . 

(Surname.)  (Christian  name.) 

(Rank.) 

-lln  19-. 
Years  of  service, j 

(This  form  is  intended  as  a  general  guide  only  and  should  in  no 
way  restricted  the  scope  of  the  inquiry,  which  should  be  as  thorough 
as  possible.} 

History  of  the  case  (obtained  from  the  officer  before  the  board]  : 


PRESENT    CONDITION. 

Vision:  Right  eye, 

Left  eye, . 

Right  eye  corrected  to by 

Left  eye  corrected  to by 

Hearing:  Right  ear,  ___: 

Left  ear, 

Pulse:  Rate, 

Quality 

Condition  of  arteries, 

Figure  and  general  appearance, 

Weight, pounds ;  height, inches. 

Chest  measurement:  At  expiration, inches. 

At  inspiration, inches. 

Mobility, 

Bones  and  joints, 


Skin,  

Nervous  system, 

Respiratory  system, 
Veins,   

Varicocele, 

Varicose  veins, 


482  PROCEDURE   FOR  COURTS  AND  BOARDS. 

Digestive  system, 

Hernia, 

Genitourinary  system,  

Is  he  incapacitated  for  active  service? 

Nature  and  degree  of  disability, 

How  does  it  incapacitate? 

Is  it  permanent?  

Is  the  incapacity  the  result  of  an  incident  of  service? 


,     .     .     avy. 


-  ,  U.  JS.  Navy. 


I  nl, 

• 


INDEX. 

(Numbers  refer  to  sections  except  where  otherwise  indicated.) 


Accident  involving  loss  of  life 496 

Accident  involving  serious  damages 497 

Accused.     (See  under  General  court-martial,  etc.) 
As  a  witness.     (See  Witness.) 
Counsel  for.     (See  Counsel  for  accused.) 

Acquittal,  forms  of 323 

Adjournment 361 

Admissibility  of  evidence.     (See  Evidence.) 

Admissions 120 

Admissions  in  open  court 111 

Affidavits 185 

Arguments 313-317 

Arraignment.     (See  under  General  court-martial,  etc.) 

Arrest 42-52 

Limits  of : 45 

Officers  under 44,  46,  49,  50 

Release  of  officers  from 52 

Articles  for  the  Government  of  the  Navy 6 

Articles  for  the  Government  of  the  Navy,  together   with  subsequent 

statutory  enactments  relating  thereto pp.  25-46 

Attachment,  warrant  of 131,  p.  377 

Bad  conduct  discharge 459 

Execution  of 463 

Board  of  inquest 596-608,  pp.  431-433 

By  whom  ordered 596 

Constitution '. 597 

Opinion 605 

Precept 598,  p.  433 

Procedure 599-604 

Record  of  proceedings 606 

Reviewing  authority 608 

Revision 607 

Witnesses 602-603 

Board  of  investigation 582-595,  pp.  426-428 

By  whom  ordered 582 

Constitution 584 

Findings  and  opinion 592 

Oaths 587 

Parties  to,  rights  of 589 

Powers  of 586 

Precept : 585,  p.  428 

Procedure 588,591 

483 


484  INDEX. 

Board  of  investigation — Continued. 

Record  of  proceedings 593 

Reviewing  authority 595 

Revision 594 

When  ordered 1 583 

Witnesses 590 

Board  of  medical  examiners 663-678,  744-745,  pp.  451-455 

Convening  authority 666 

Constitution 665,668 

Final  action _'.  678 

Finding  and  recommendation 073-075,663-604 

Oaths 669 

Precept p.,  453 

Procedure - i 669-672 

Record 676 

Revision lo-s 677 

Board,  marine  examining.     (See  Marine  examining  board.) 

Board,  marine  retiring.     (See  Marine  retiring  board.) 

Board,  naval  examining.     (See  Naval  examining  board.) 

Board,  naval  retiring.     (See  Naval  retiring  board.) 

Boards,  in  general 556-567 

Findings  and  opinion 565-567 

Interpreter 562 

Members,  absence  of 558-561 

Members,  precedence  of 556 

Recorder 563-564 

Senior   member 557 

Bread  and  water.     (See  Confinement.) 

Burden  of  proof 105 

Candidate.     (See  under  Naval  examining  board,  etc.) 

Candidate  for  appointment . 626-628 

Candidate  for  appointment,  physical  examination  of 667-668 

Challenge 277-282 

Charges  and  specifications,  in  general 53-81 

Abbreviations    in 68 

Additional 58 

Alterations  in 55-57 

Definition 53 

Duplication  of 61 

Errors    in 56 

Framing  of__ lit 54;  62-78 

Specimen  forms  of pp.  83-133 

Charges  and  specifications.     (See  also  under  General  court-martial,  etc.) 

Civil  authorities,  delivery  of  men  to — 29 

Civil  authorities,  service  of  subpoenas  by - —  29  (18) 

Clemency,  recommendation  to 357 

Clerical   assistance— -  269-273 

Closed  court 150 

Coast  and  Geodetic  Survey  Service _ 25,224 

Coast  Guard— 25,  224 

Collision  with  merchant  vessel.     (See  Merchant  vessel.) 

Complainant.     (See  under  Court  of  inquiry,  etc.) 

Complaints 34-38 


INDEX:  485 

Confessions 120 

Confinement  of  enlisted  men  awaiting  trial 51 

Confinement  of  officers 48 

Confinement,  on  bread  and  water 353,446 

Confinement,  sentence  involving 348,  349,  352,  444,445 

Contempt  of  court 170-174 

Convening  authority.     ( See  under  General  court-martial,  etc. ) 

Corpus  delicti 102 

Corrections  in  record,  how  made 88 

Corrections,  of  testimony,  how  made 89 

Counsel  for  accused 265-268 

Counsel  for  judge  advocate , * 260-262 

Court  of  inquiry 494-555,  pp.  409-420 

Clerk,  stenographer,  and  interpreter 514 

Complainant 506,  508 

Constituiton 499-502 

Convening  authority 498 

Defendant-! U  507,512 

Dissolution ^ 545 

Findings  and  opinion 533-537 

Interested   party 507,  512 

Judge  advocate 505 

Oaths 528-532 

Orderly 515 

Parties  to  the  inquiry 506-513 

Precept 503,  pp.  417-420 

President 504 

Procedure 516-527 

Record  of  proceedings 538-542 

Reviewing  authority 544 

Revision 543 

When  convened 494-497 

Witnesses.     (See  Witnesses.) 

Court  of  inquiry,  in  case  of  loss  or  grounding  of  a  ship 546-555 

Court-martial 4 

Place  of  meeting 215 

Sessions  of 216-217 

Court-martial.     (See  General  court-martial,  etc.) 

Court-martial  orders : 7,  387 

Courts,  exceptional  military : 13,14 

Criminal  intent.     (See  Intent.) 

Criminating  questions : 159, 162-165 

Customs  of  the  service : 7 

Death,  sentence  to 337 

Decisions,  of  courts 7 

Decisions,  of  President,  Secretary  of  the  Navy 7 

Deck  court 467-493,  pp.  45-46,  403-405 

Accused,  consent  of  necessary :=. 476 

Constitution 468-469 

Convening  authority 467 

Deck  court  officer—  _  472-473 

Finding 482 

Oaths  478-479 

_ 


486  'INDEX. 

Deck  court — Continued. 

Postponement 480 

Previous   convictions 483 

Procedure 481 

Record  of  proceedings 490-493 

Recorder : 474-475 

Reviewing  authority 486-489 

Sentence 484-485 

Execution  of 486 

Specifications 470-471 

Deck  court  officer.     ( See  under  Deck  court. ) 
Defendant.     (See  under  Court  of  inquiry.) 

Degrading  questions 160,  162-165 

Depositions 178-183,  pp.  375-376 

Digest,  index 8 

Digest,  naval 8 

Discharge,  sentence  to 348-350 

Dismissal,   sentence  to ! 338-339 

Disrating,  classification  for 449 

Disrating,  sentence  to 346-347 

Documentary  evidence,  definition 1 186 

Documentary  evidence,  method  of  introducing 187 

Documentary  evidence,  objection  to  admission  of 188 

Documents,  alterations  in 189 

Documents,  evidence  as  to  contents  of 190 

Documents,  how  attached  to  record 84,   203 

Documents,  introduced  in  full 191 

Documents,  private  _' 199 

Documents,   public 194-198 

Dying  declarations 119 

Evidence,  admissibility  of 112-120 

As  to  character 214 

Circumstantial 97 

Conclusive 98 

Cumulative 211 

Definition  of 93 

Determination  of  rules  of 94-95 

Direct 97 

In  aggravation 212-213 

In  extenuation 214 

Opinion ^ 146 

Order  of  introducing 205 

Prima  facie 98 

Real 96 

Weighing 20&-210 

Written 96 

Examining  boards.  (See  Naval  examining  board,  etc.) 

Exceptional  military  courts 13, 14 

Expert  testimony 146 

Extra  police  duties 443 

Fees  of  witnesses ! 132,  pp.  378-381 

Findings.     (See  under  General  court-martial,  etc.) 

Former  jeopardy 298 


INDEX.  487 

General  court-martial 215-390,  pp.  339-383 

Accused 263-264 

Arraignment 292 

Challenge.     (See  Challenge.) 

Charges  and  specifications 232-235 

Clerk,  stenographer,  or  interpreter 269-273 

Constitution 219-227 

Convening  authority 218 

Counsel  for  accused , 265-268 

Counsel  for  judge  advocate 260-262 

Dissolution 389,  p.  383 

Findings 318-325 

Judge  advocate 250-259 

Limitation  of  punishment  of 390 

Members 236-247 

Oaths 283-290 

Pleas.     (See  Pleas.) 

Postponement 291 

Precept 228-231,  pp.  343,  367 

Preliminary  motions.     (See  Preliminary  motions.) 

President 248-249 

Previous  convictions.     (See  Previous  convictions.) 

Provost  marshal,  guard,  orderlies 274-275 

Record  of  proceedings 358-371 

Reviewing   authority 382 

Revision 372-381 

Sentence 335-356 

Execution  of 382 

Witnesses.     (See  Witnesses.) 

General  court-martial,  recommendation  for  trial  by 40 

General  intent.     (See  Intent.)  .  * 

Grounding  of  a  ship.     (See  Court  of  inquiry  in  case  of  grounding  of  a 
ship.) 

Guilty,  plea  of 301,  306-308 

Guilty  in  a  less  degree  than  .charged,  plea  of 302 

Guilty  without  criminality 304 

Habeas  corpus,  brief  to  be  filed  with  return  to 33 

Habeas  corpus  proceedings 29  (4-8) 

Habeas  corpus,  return  to,  when  issued  by  a  Federal  court ^ 30 

Habeas  corpus,  return  to,  when  issued  by  a  State  court 32 

Habeas  corpus,  writ  of : 29  (4-8) 

Handwriting,  proof  of 146 

Hazing . 391,  395-398 

Hearsay  rule 114-117 

Immediate  superior  in  command 459 

Imprisonment,  sentence  of 339,  351 

Incident  to  the  service 695 

Incompetency 81,  448 

Index  for  lengthy  cases 91 

Index-Digest 8 

Inquest.     (See  Board  of  inquest.) 
Inquiry.     (See  Court  of  inquiry.) 


488  INDEX. 

Inquiry  into  loss  or  grounding  of  a  ship 546-555 

Intent,  criminal 104 

Intent,  general 104 

Intent,  specific.-.                         _ 104 

Interested  party.     (See  under  Courts  of  inquiry.) 

Interpreter _ 562 

Investigation—                                                                            _  568-581,  pp.  423-426 

Authority  for 569 

By  whom  ordered 568' 

Findings --— I ,  578 

Oaths  _                                                                                            571-573 

Parties  to .  575 

Precept 570,  pp.  424-425 

Procedure 574,  577 

Record 579 

Witnesses 576 

Investigation,  board  of.     (See  Board  of  investigation.) 

Jeopardy,    former : 298 

Judge  advocate.     (See  under  General  court-martial,  etc.) 

Judicial  notice 110 

Jurisdiction :___, 20 

As  to  persons 25 

As  to  place 23 

As  to  offenses : 26 

As  to  time 24 

Jurisdiction,  appellate 

Jurisdiction,  concurrent 27 

Jurisdiction,  lack  of 296 

Jurisdiction,    military 1 

Leading   questions- 147 

Liberty,  deprivation  of 447 

Lighthouse    service 25,  224 

Limitations  of  punishment  _.  390 

Line  of  duty 609-612 

Loss  of  numbers,  sentence  to 342 

Loss  of  pay,  checkage  of 464 

Loss  of  pay,  sentence  to 340,348,349,4-42 

Loss  of  seniority,  sentence  to 343 

Loss  of  ship.     (See  under  Court  of  inquiry  in  case  of  loss  or  ground- 
ing of  a  ship.) 

Marine  Corps  serving  with  Army _: p.  46 

Marine  examining  board 701-743,  pp.  469-474 

Board  of  medical  examiners  in  connection  therewith 713,  744-745 

Candidate 706 

Constitution 702 

Convening  authority 701 

Final  action 741-743 

Finding  and  recommendation 732-736 

Form  of  examination 712 

Moral  fitness ; 1 719-721 

Oaths ~  708-710 


INDEX.  489 

Marine  examining  board-Continued. 

Physical  and  mental  fitness 713-718 

Precept - 705,  p.  473 

Procedure 707 

Professional  examination _ 722-731 

Record 737-739 

Revision 740 

Witnesses __  ___ _ _____          741 

Marine   retiring  board 746-771,  pp.  477-482 

Constitution 748-752 

Convening  authority 747 

Final    action 7G9-771 

Finding _ _ 766 

Oaths—  756-759 

Officer  before  board 753-755 

Powers  of _  760-761 

Precept p.  480 

Procedure 762-765 

Record 767 

Revision 768 

When  ordered 746 

Martial  law 1, 10, 12, 15 

Medical  certificate 364 

Medical  examiner GGS,  p.  454 

Medical  examiners.     (See  Board  of  medical  examiners.) 
Members.     (See  under  General  court-martial.) 

Members,  absence  of 87 

Memoranda,  use  of  in  evidence 145 

Merchant  vessel,  collision  with 583 

Midshipmen,  triable  by  court-martial  for  hazing 391 

Midshipmen,  triable  by  general  court-martial 400 

Military  commission 13, 14 

Military  courts,  exceptional 13, 14 

Military  government 1, 10, 11, 15 

Military  jurisdiction 1 

Military  law 1,  2 

Misconduct,  .defined 613 

Misconduct,  disqualified  for  promotion  by  reason  of 656 

Misconduct,  inquiry  into  complaints  of 34 

National  Naval  Volunteers 25,  224 

Naval  Academy  court-martial 391-400 

Naval  Digest 8 

Naval  examining  board 614-662,  pp.  437-447 

Candidate 620-625 

Candidate  for  appointment 626-628 

Constitution 616 

Convening  authority ^__  615 

Final  action . 654-656 

Finding  and  recommendation 643-645 

Oaths 636-638 

Precept 619,  p.  443 

Procedure 629-635 

Record _  646-652 


490  INDEX. 

Naval  examining  board — Continued. 

Revision „ 653 

When  convened 614 

Witnesses 639-642 

Naval    examining   board,    supervisory.      (See    Supervisory   board   for 
examination. ) 

Naval  law 3 

Naval  law,  sources  of 5 

Naval  Militia 25,  224 

Naval  Reserve  Force 25,  224 

Naval  Retiring  Board _.  _  679-700,  pp.  459-466 

Constitution _  681-682 

Convening  authority  _ 680 

Final  action 700 

Finding _  693-697 

Oaths _ 686-689 

Officers  before  board ___  683-685 

Procedure _  690-692 

Record 698 

Revision 699 

When  ordered 679 

Navy  Regulations 6 

Nolle  prosequi 60 

Nolo  contendere,  plea  of 303 

Not  guilty,  plea  of 301 

. 

Oaths.     (See  under  General  court-martial,  etc.) 

Oaths,  officers  authorized  to  administer 184 

Offenses pp.  83-133 

Offenses,  minor 37 

Offenses  triable  by  deck  court 471 

Offenses  triable  by  summary  court-martial 412 

"  Officers  "   construed p.  86 

Official  records,  preliminary  examination  of,  by  private  parties .  29  (18) 

Official  records,  production  of  in  civil  courts 29  (18) 

Opinion.     (See  under  Court  of  inquiry  ;  Board  of  investigation ;  etc.) 
Opinion  evidence.     (See  Evidence.) 

Opinions 7 

Orderlies -  276,  426 

Pardon 299 

Perjury - -  79 

Pleas  to  the  issue -  301-310 

Change  of 309 

Guilty -  301,  306-308 

Guilty  in  a  less  degree  than  charged 302 

Guilty  without  criminality 304 

Nolo  contendere 

Not  guilty 301 

Rejection  of 310 

Standing  mute 305 

Postponement.     (See  under  General  court-martial,  etc.) 

Precept.     (See  under  General  court-martial,  etc.) 


INDEX.  491 

Precept,  modifications  of 86 

Preliminary   motions 294-300 

Presumptions __*  107-100 

Previous  convictions.     (See  Record  of  previous  convictions.) 

Prison,  designation  of 338 

Privileged  questions 155-165 

Proclamation  of  military  government p.  21 

Provost  court 13,14 

Provost  court,  superior 13, 14 

Provost  marshal 274-275 

Public  Health  Service 25,  224 

Public  reprimand,  sentence  to 344 

Punishment,  limitations  of.     (See  Limitations  of  punishment.) 

Reasonable  doubt 106 

Rebuttal 206 

Recess 361 

ftecord,  corrections  in,  how  made 88 

Record,  making  up 82-92 

Record  of  previous  convictions 326-334 

Record  of  proceedings.     (See  under  General  court-martial,  etc.) 
Recorder.     ( See  under  Summary  court-martial  and  deck  courts. ) 

Recorder  of  boards 563-564 

Reduction  in  rating,  sentence  to.     (See  Disrating.) 

Report  of  deserters 195 

Reports 34-38 

Res  gestae 117 

Restriction,  sentence  to 341 

Retiring  board.     (See  Naval  retiring  board;  Marine  retiring  board.) 
Reviewing  authority.     (See  under  General  court-martial,  etc.) 
Revision.-    (See  under  General  court-martial,  etc.) 

Sentence.     (See  under  General  court-martial,  etc.) 

Service  record 195 

Specifications.     (See  Charges  and  specifications.) 

Standing  mute . 305 

Statement 311,  312,  315,  316 

Statutes  of  limitations 24,297 

Stenographer 269-27$ 

Subpoena  for  civilian  witness 124,  p.  373 

SubpO2na  for  civilian  witness,  refusal  to  obey 130 

Subpoena  for  civilian  witness,  service  of__  - 129 

Subpoena  duces  tecum __^ 202,  p.  374 

Subpoenas,  service  of,  by  civil  authorities _._  29  (18) 

Summary    court-martial 401-466,  pp.  389-399 

Accused 423 

Arraignment 433 

Clerk,  stenographer,  and  interpreter 425 

Constitution 404-408 

Convening  authority 402-403 

Counsel  for  accused 424 

Dissolution 466 

Findings 430 

26450°— 17 32 


492  INDEX. 

Summary  court-martial  —  Continued. 

Members  ______________________________________________________  415-41G 

Oaths  ________________________  ____________________  428-431 

Orderly,  _________  _  _________  420 

Postponement  __________________  432 

Precept  _______________  409,  p.  3,S9 

Record   of  proceedings  ________  _  454-4.-,.-, 

Recorder  __________________________  _  418-422 

Reviewing  authority  ___________  45s  4,;.-, 

Revision  _______________________  456-457 

Senior  member  _____  ___  :  ________  ___  _________  417 

Sentence  _____________________  4-J  1    45-j 

Sentence,  execution   of     _______  159 

Sessions  ______________  _  _________  401 

Specifications  ________  m>-414 

Witnesses  ___________________  437 

Summons  for  naval  witness  ______________  •__  ._-_  _____  _____     123.  i>.  373 

"  Superior  officer  "  construed  _____  _—  p.  86 

Superior  provost  court—  ______________  13.  14 

Supervisory  board  for  examination  ____  C,57-('»r,2.  pj».  444-447 

Surrebuttal  ______  _  ________________  207 

Suspension,  limits  of  ________________  47 

Release  of  officers  from  ___________  52 

Sentence  to  —  345 

. 

Testimony,  correction  of,  how  made  ______  89 

Testimony,  verification  of  _______________  175-176 

Transcript  of  record  of  deck  court—  489 

Transcript  of  record  of  summary  c<»urt-m;n-ti:f'  4<?5 
Trial  in  loinder  • 

Arraignment  under  ___  1__  _____  293 

Finding  and  sentence  under  _________  324 


of  members,  not  to  be  disclosed  _______  1  -----------  _l-  452 

Voting  ______________________________  _  _______________________________  238 

_ 

Waiver,  by  candidate  of  right  -to  appear  before  a  statutory  examin- 

ing board  ___________________________________  =  ____________  0(>1.   p.   447 

Warrant  of  attachment  _____________________________  ______  131.  p.  377 

Witness  accused  as  ________  __________________  13S.  161 

Witness,  judge  advocate  as_  ________________  139 

Witness,  member   as  _____________________  139 

Witnesses,  competency  of  ___________  ^  ________  _  1-53-  139 

Conversation  by.  on  matters  pertaining  f<»  iriai  _____  177 

Credibility  of  _____________________________________  135 

Cross-examination  of  _____________________  151 

Direct  examination   of  _____  142 

Examination   of—  1  i<».  141 

Fees  of  ___________________  1-32 

Impeachment   of  ____________________ 

In  contempt  ______________________________________ 

Recross-examination  of—  !•->- 


INDEX.  493 

Witnesses,  competency  of — Continued. 

Redirect  examination   of 152 

Subpoenaing  of  civilian 124,-129 

Summoning  of  expert 125 

Summoning  of,  for  character 125 

Summoning  of,  for  defense 126 

Summoning  of,  in  general _  122-132 

Summoning  of  naval 123 

Witnesses.     ( See  under  Summary  court-martial ;  etc. ) 

Writ  of  habeas  corpus.     (See  Habeas  corpus.)' 


CHANGES 

IN 

NAVAL  COURTS  AND 
BOARDS:  191 7 


No.  I 


NAVY  DEPARTMENT, 
Washington,  D.  C\,  16  March,  1918. 

The  following  changes  in  Naval  Courts  and  Boards,  1917,  shall  be  made 
immediately  upon  receipt  of  this  order. 

JOSEPHUS  DANIELS, 
Secretary  of  the  Navy. 


WASHINGTON 

GOVERNMENT  PRINTING  OFFICE 
1914 


.  SOU/ 

a          UOD  JAVAH 


• 


Page  18.  Between  twelfth  and  thirteenth  lines,  insert  the  sentence 
"If  consisting  of  less  than  five  members  the  convening  order  should 
specifically  state  that  no  other  officers  can  be  summoned  without 
serious  prejudice  to  military  interests." 

Page  85.  Immediately  below  the  paragraph  ending  "aforesaid 
car."  insert  the  following: 

"  Clarge. — ASSAULT  AND  BATTEEY. 

"Specification. — In   that  -  — ,   private,    U.   S.   Marine 

Corps,  serving  at  the  marine  barracks,  — ,  -        — ,  -        — ,  did, 

at  -       — ,  -       — ,  on  or  about  June  30,  1917,  the  United  States  then 

being  in  a  state  of  war,  make  an  assault  upon  A—        -  B.  C , 

of  -        — ,  -        — ,  and  did  then  and  there  strike,  beat,  wound,  and 
otherwise  illtreat  the  said  A B. 


Page  91.  Fifteenth  line  from  top  of  page  strike  out  the  words 
"and  having,  on  August  27,  1913,  been  given  a"  and  substitute 
therefor  the  words,  "did,  on  August  27,  1913,  in  the  manner  and  by 
the  means  aforesaid,  with  intent  not  to  carry  out  his  part  of  said 
agreement,  fraudulently  obtain  his". 

Page  91.  Seventeenth  line  from  top  of  page  after  the  word  "afore- 
said" insert  the  word  "and". 


Page  91.  Immediately    above    the    heading    "  CJiarge. — CONDUCT 
UNBECOMING  AN  OFFICER  AND  A  GENTLEMAN"  insert  the  following: 

" Specification. — In  that  A B—      — ,  seaman,  U.  S.  Navy, 

serving  on  board  the  U.  S.  S. ,  well  knowing  that  he,  the  said 

A B ,  was  suffering  from  a  contagious  venereal  disease, 

did,  on  or  about  November  9,  1917,  on  board  said  ship,  conceal  the 
presence  of  the  said  disease  by  failing  to  report  same  to  the  medical 
officer  of  the  said  ship,  and  did  continue  to  so  conceal  said  disease 
until  on  or  about  November  19,  1917,  when  the  presence  of  said 
disease  was  disclosed  by  examination  of  the  said  A- 
for  transfer  (or  as  the  case  may  be)." 

(2) 


Page  116.  Strike  out  sample  specification  under  heading  reading 
"Cl.arge.— ROBBERY."  and  substitute  therefor  the  following: 

1 ' Specification. — In  that  —  — ,  private,  U.  S.  Marine  Corps, 

serving  at  the  marine  barracks,  -  — • — ,  -  — ,  -  — ,  did,  at 
— ,  -  — ,  on  or  about  June  30,  1917,  the  United  States  then 
being  in  a  state  of  war,  with  force  and  violence,  feloniously  make  an 
assault  upon  A—  -  B.  C—  — ,  of  -  — ,  -  — ,  and  did  then 
and  there,  against  the  will  and  by  violence  to  the  person  of  the  said 
A —  -  B.  C-  — ,  feloniously  rob,  steal,  take,  and  carry  away 
from  the  person  of  the  said  A —  -  B.  C- —  — ,  -  -  dollars 
($  ),  or  thereabouts,  in  United  States  money,  the  property  of 
the  said  A-  -  B.  C—  -." 

Page  117.  Second  specification,  "SCANDALOUS  CONDUCT,"  change 
the  word  ''were"  to  "did"  and  the  words  "found  lying"  to  "lie". 

Page  117.  Third  line  from  bottom  add  in  parentheses  the  sentence 
"This  form  to  be  used  only  when  participants  are  to  be  tried  in 
joinder." 

Page  123.  After  word  "sodomy."  last  line  of  first  specification 
under  t"  Charge. — SODOMY"  add  in  parentheses  the  sentence  "This 
form  to  be  used  only  when  participants  are  to  be  tried  in  joinder." 

Page  138.  Section  84  (continued  from  preceding  page),  in  next  to 
last  line,  before  the  word  "appended"  insert  words  "prefixed  or". 

Page  138.  Section  87,  change  first  sentence  (after  heading)  to  read 
"In  case  of  absence  on  leave  or  other  duty  authorized  by  proper 
authority,  with  the  knowledge  and  approval  of  the  convening;  author- 
ity, a  copy  of  the  orders  permitting  or  directing  the  absence  of  such 
member  must  be  appended." 

Page  144.  In  the  next  to  last  line  change  the  word  "homocide"  to 
"homicide". 


Page  151.  Line  14  from  top  of  page  change  "by"  to  "be". 


Page  151.  Section  124,  insert  the  word  "to"  between  the  words 
" As"  and  "the"  in  the  first  line  of  the  section. 


• 


.    • 


Page  164.  Immediately  above  section  166  insert  the  following 
new  section: 

"165  (a).  Parties  and  witnesses  before  courts  of  inquiry. — Inas- 
much as  the  testimony  given  by  witnesses  before  courts  of  inquiry 
may,  under  certain  conditions  [see  Naval  Courts  and  Boards,  sec- 
tions 187  (a),  198  (a),  and  210  (a)]  be  used  against  such  witnesses, 
or  by  or  against  others,  in  subsequent  trials  by  courts-martial,  it  is 
important  that  courts  of  inquiry  should  fully  understand  the  statu- 
tory powers,  restrictions,  and  safeguards  which  surround  the  pro- 
duction of  evidence  in  cases  which  they  are  called  upon  to  investigate. 

' i  While  a  court  of  inquiry  has  the  same  powers  as  a  general  court- 
martial  with  reference  to  compelling  the  attendance  of  witnesses, 
punishing  for  contempts,  taking  testimony  under  oath,  etc.,  at  the 
same  time  defendants,  interested  parties,  and  witnesses  before 
courts  of  inquiry  have  all  the  rights  accorded  by  law  to  parties  and 
witnesses  before  general  courts-martial,  principal  among  these  being 
the  right  of  a  defendant  or  interested  party  to  be  represented  by 
counsel,  to  cross-examine  witnesses,  to  introduce  evidence,  and, 
in  the  case  of  a  defendant  only,  to  be  privileged  from  testifying 
except  at  his  own  request;  and  on  the  part  of  witnesses,  the  right 
to  decline  answering  any  question  which  may  tend  to  incriminate 
or  degrade  them. 

"While  it  is  not  legally  necessary  that  defendants  and  interested 
parties  before  a  court  of  inquiry  should  be  warned  that  what  they 
say  may  be  used  against  them  [paragraph  (f),  Naval  Courts  and 
Boards,  section  198  (a)],  it  is  desirable  that  in  practice  this  be  done 
and  that  they  be  further  informed  of  their  rights,  particularly  where 
they  are  without  counsel.  (See  Naval  Courts  and  Boards,  pp.  414, 
415.)" 

Page  167.  Section  177,  strike  out  subparagraph  (b)  and  insert: 
"The  court  should  especially  direct  any  witness  who  has  testified 
in  a  case  to  refrain  from  disclosing,  either  directly  or  indirectly,  any 
part  of  the  testimony  he  has  given,  and  from  conversing  with  any 
person  whatsoever  concerning  the  details  of  his  testimony.  This 
warning,  however,  will  not  preclude  the  judge  advocate  or  counsel 
for  the  accused  from v  legitimate  conversation  with  the  witness, 
neither  shall  it  be  given  to  a  member  of  the  court,  the  judge  advocate, 
the  accused,  nor  the  counsel,  should  they  become  witnesses." 


Page  171.  Add  the  following  new  section  above  section  188: 

"187  (a),  Method  of  introducing  court  of  inquiry  proceedings  in 
evidence. — Where  it  is  decided  by  the  court  to  receive  the  proceedings 
of  a  court  of  inquiry  in  evidence  against  the  accused  the  procedure 
to  be  followed  should  be  substantially  the  same  as  that  outlined  in 
Naval  Courts  and  Boards,  Section  182,  with  reference  to  depositions. 
That  is  to  say,  a  proper  foundation  having  been  laid  for  the  intro- 
duction of  the  proceedings,  by  establishing  to  the  satisfaction  of  the 
court  that  conditions  exist  which  made  such  proceedings  admissible 
under  article  60,  A.  G.  N.,  or  independently  of  that  article  (17  Ann. 
Cas.,  76,  106;  8  id.,  466),  the  judge  advocate  should  take  the  stand 
as  a  witness,  identifying  the  record  and  stating  that  he  desires  to  read 
therefrom  so  much  of  the  proceedings  as  embodies  the  testimony  of 
a  particular  witness  with  reference  to  a  particular  point  in  issue;  he 
should  then  present  the  record  to  the  opposite  party  and  to  the  court 
for  inspection  and  opportunity  to  interpose  objection  to  its  admis- 
sion; if  there  be  no  valid  objection  offered,  the  judge  advocate  should 
proceed  to  read  the  questions  and  answers  from  the  record  of  the 
witness's  testimony  before  the  court  of  inquiry,  subject  to  objection 
in  the  same  manner  as  objection  might  be  made  to  a  witness  actually 
on  the  stand. 

"Inasmuch  as  the  scope  of  an  investigation  by  a  court  of  inquiry 
is  commonly  very  broad,  involving  the  conduct  of  various  persons 
as  well  as  condition  of  materiel,  etc.,  it  will  frequently  happen  that 
the  examination  of  a  witness  before  a  court  of  inquiry  will  include 
many  matters  that  would  not  be  relevant  upon  the  trial  of  a  particular 
accused  before  a  court-martial,  and  the  procedure  above  outlined 
for  introducing  the  proceedings  of  a  court  of  inquiry  will  serve  to 
eliminate  irrelevant  evidence  at  the  trial. 

"The  testimony  as  read  by  the  judge  advocate  should  be  recorded 
in  the  body  of  the  court-martial  record,  together  with  objections 
and  rulings  of  the  court  thereupon,  in  the  same  manner  as  though 
such  testimony  were  given  before  the  court-martial  in  person  by  the 
witness  who  appeared  before  the  court  of  inquiry. 

"The  accused  should  be  allowed  on  cross-examination  of  the  judge 
advocate  to  require  that  he  read  any  other  testimony  given  by  the 
same  witness  before  the  court  of  inquiry  which  might  serve  to  explain 
or  to  affect  the  weight  of  his  testimony  as  read  on  direct  examination, 
and  to  proceed  further  in  the  case  in  the  direction  of  contradicting 
the  witness,  impeaching  his  reputation  for  truth  and  veracity,  etc., 
in  the  same  manner  as  though  the  witness  had  given  his  testimony 
in  person  at  the  trial. 

^'In  the  event  that  the  proceedings  of  the  court  of  inquiry  are 
offered  in  evidence  by  the  accused,  the  procedure  should  be  the 
same  as  indicated  above,  except  that  the  judge  advocate,  as  cus- 


^iiroo  ^nioifboTlr 


• 
' 


' 
. 
. 

. 

• .  • 

•  •  va  egfain  rods  bsjfioiboi 


6 

todian  of  the  record,  would  be  called  as  a  witness  for  the  defense 
for  the  purpose  of  getting  such  proceedings  before  the  court. 

"The  fact  that  the  testimony  of  a  witness  before  a  court  of  inquiry 
may  be  legally  admissible  in  evidence  before  a  court-martial  does 
not  render  the  entire  proceedings  of  the  court  of  inquiry  competent 
as  evidence  (C.  M.  O.,  24,  1917,  Apr.  2,  1917);  and  this,  of  course, 
applies  with  especial  force  to  the  findings  of  the  court  of  inquiry. 
(Naval  1  ig  ,  1916,  p.  131,  sec.  18.)" 

Page  175.  Add  as  section  198  (a)  the  following: 

"198  (a).  Court  of  inquiry  proceedings  as  evidence  before  courts- 
martial. — Article  60,  A.  G.  N.,  provides  in  effect  that  the  proceedings 
of  courts  of  inquiry  shall  be  admissible  in  evidence  before  courts- 
martial  under  the  following  conditions : 

"1.  That  such  proceedings  must  be  'duly  authenticated  by  the 
signature  of  the  president  of  the  court  and  of  the  judge  advocate'; 

.  "  2.  That  the  case  in  which  the  proceedings  are  received  in  evidence 
must  be  one  i  not  capital ' : 

"3.  That  the  case  in  which  the  proceedings  are  received 'in  evi- 
dence must  be  one  not  '  extending  to  the  dismissal  of  a  commis- 
sioned or  warrant  officer'; 

"4.  That  'oral  testimony  can  not  be  obtained.' 

"The  second  and  third  conditions  above  stated  have  been  con- 
strued to  mean  that  the  proceedings  of  courts  of  inquiry  shall  not 
be  admissible  in  evidence  before  a  court-martial,  under  authority 
of  article  60,  A.  G.  N.,  where  the  sentence  of  death  or  dismissal  is 
by  law  made  mandatory  upon  conviction  of  the  offense  charged 
(C.  M.  O.  88,  1895,  pp.  13,  14;  G.  C.  M.  Rec.  No.  11279).  The  sen- 
tence of  death  is  not,  under  the  Articles  for  the  Government  of  the 
Navy,  mandatory  upon  conviction  in  any  case  triable  by  a  naval 
court-martial  (see  art.  7,  A.  G.  N.). 

"Where  a  court-martial  is  authorized  but  not  required  to  adjudge 
the  punishment  of  death  or  dismissal  upon  the  conviction  of  an 
offense,  the  proceedings  of  a  court  of  inquiry  may,  under  the  terms 
of  article  60,  A.  G.  N.,  be  introduced  in  evidence  against  the  ac- 
cused, subject  to  the  remaining  conditions  prescribed  in  said  article, 
but  in  any  case  in  which  the  proceedings  of  a  court  of  inquiry  are  so 
used  in  evidence  under  article  60,  A.  G.  N.,  the  court  must  be  careful 
not  to  adjudge  a  sentence  extending  to  death  or  dismissal.  In  time 
of  peace  the  punishment  which  may  be  imposed  upon  conviction 
in  such  cases  in  which  the  proceedings  of  a  court  of  inquiry  are  used 
in  evidence  against  an  officer  on  trial  by  court-martial,  is  limited 
by  section  390,  Naval  Courts  and  Boards,  'to  loss  of  one  hundred 
numbers  in  rank.'  This  limitation  does  not  apply  in  time  of  war. 


and  courts-martial  may  under  such  circumstances  adjudge  any 
appropriate  sentence  authorized  by  the  Articles  for  the  Govern- 
ment of  the  Navy,  provided  it  does  not  extend  to  death  or  dismissal. 

"The  fourth  condition  above  stated  is  that  'oral  testimony  can  not 
be  obtained.'  The  circumstances  under  which  oral  testimony  may 
be  unobtainable  are  varied.  The  following  rules  are  established 
for  the  guidance  of  courts-martial  with  reference  to  this  condition, 
and  are  not  intended  to  be  unalterable  or  exclusive: 

"  (1)  Oral  testimony  may  be  regarded  as  unobtainable  under  the 
following  circumstances : 

"  (a)  In  the  cases  of  civilian  witnesses  who  are  beyond  the  reach 
of  compulsory  process  which  the  judge  advocate  is  authorized  to 
issue.  In  such  cases  it  should  appear  that  subpoenas  intended  to 
secure  the  voluntary  attendance  of  such  witnesses  have  been  for- 
warded to  the  Secretary  of  the  Navy,  as  provided  in  Naval  Courts 
and  Boards  (sec.  124),  and  that  such  action  has  for  any  reason  failed 
to  produce  their  appearance  at  the  trial. 

"  (b)  In  the  cases  of  persons  in  the  naval  or  military  service  whom 
the  judge  advocate  is  not  authorized  to  summon  (Naval  Courts  and 
Boards,  sec.  123).  In  such  cases  it  should  appear  that  summons 
for  such  witnesses  have  been  forwarded  to  the  Secretary  of  the  Navy 
or  other  convening  authority,  as  provided  in  Naval  Courts  and 
Boards  (sec.  123),  and  that  such  action  has  for  any  reason  failed  to 
produce  their  appearance  at  the  trial. 

"  (2)  Oral  testimony  may  be  regarded  as  unobtainable  in  the  case 
of  a  witness  who  has  died,  or  has  become  insane,  or  by  the  opposite 
party  is  kept  out  of  the  way,  or  is  too  ill  or  infirm  to  come  to  the 
court.  (2  Bishop's  New  Criminal  Procedure,  sec.  1195.) 

"  (c)  l  When  a  fact  has  been  sufficiently  established,  it  is  unneces- 
sary to  consume  the  time  of  the  court  by  introduction  of  additional 
evidence  which  is  merely  cumulative.'  (Naval  Courts  and  Boards, 
sec.  211.)  The  court  is  the  judge  of  how  much  evidence  shah1  be 
received  with  reference  to  any  particular  fact,  and  where  in  any 
case  it  considers  that  sufficient  evidence  has  already  been  introduced, 
it  will  properly  hold  that  the  case  is  not  one  in  which  'oral  testi- 
mony can  not  be  obtained'  as  to  that  fact,  and  will  accordingly 
refuse  to  admit  the  proceedings  of  a  court  of  inquiry  with  reference 
thereto,  notwithstanding  that  such  proceedings  may  contain  the 
testimony  of  a  witness  as  to  such  fact  whose  personal  attendance 
before  the  court  can  not  be  obtained. 

"  'Article  60,  A.  G.  N.,  however,  was  not  intended  to  restrict  the 
admissibility  of  court  of  inquiry  records  in  evidence  where  such 
records  might  have  been  admitted  under  general  principles  of  the 
law  of  evidence;  but  was  intended  to  enlarge  the  rules  of  evidence 
by  authorizing  the  records  of  courts  of  inquiry  to  be  admitted  in 


. 

• 


8 

certain  cases  where  they  would  otherwise  have  been  inadmissible.1 
(C.  M.  O.  51,  1914,  p.  6.)  It  follows  that  in  cases  where  the  pro- 
ceedings of  courts  of  inquiry  are  used  in  evidence  independently  of 
article  60,  A.  G.  N.,  the  limitation  contained  in  said  article  as  to 
'cases  not  capital,  nor  extending  to  the  dismissal  of  a  commissioned 
or  warrant  officer,'  and  the  limitation  contained  in  section  390, 
Naval  Courts  and  Boards,  as  to  loss  of  numbers,  do  not  apply. 
Instances  in  which  the  proceedings  of  courts  of  inquiry  may  thus  be 
used  in  evidence  are  as  follows: 

11  (d)  Where  it  is  expressly  agreed  by  the  accused  that  the  proceed- 
ings of  the  court  of  inquiry  may  be  admitted  as  evidence  on  his 
trial,  each  party  to  have  the  privilege  of  introducing  other  evidence. 
(Mullan  v.  United  States,  212  U.  S.,  516;  C.  M.  O.  41,  1888,  pp.  5-6.) 

11  (e)  Where  the  proceedings  of  the  court  of  inquiry  are  offered  in 
evidence  by  the  accused  in  his  own  behalf  and  received  by  the 
court — for  the  right  of  the  accused  to  be  confronted  with  the  wit- 
nesses against  him  at  his  trial  is  one  which  he  may  waive.  (Mullan 
v.  United  States,  212  U.  S.,  516,  519;  Diaz  v.  U.  S.,  223  U.  S.,  442.) 

"  (f )  Where  the  accused  has  previously  testified  voluntarily  before 
a  court  of  inquiry,  such  testimony  is  admissible  when  offered  by  the 
prosecution  at  his  trial,  and  it  is  not  essential  to  the  admissibility  of 
his  testimony  that  he  should  have  been  warned  by  the  court  of 
inquiry  that  what  he  said  might  be  used  against  him.  (Powers  v. 
United  States,  223  U.  S.,  303,  313.)  If  it  appears  that  the  accused 
while  a  witness  before  a  court  of  inquiry  was  required  to  give  evi- 
dence tending  to  criminate  himself,  after  properly  claiming  his 
privilege  against  self-crimination,  the  testimony  thus  adduced  can 
not  be  given  in  evidence  against  him  at  his  trial.  The  witness  is 
thus  protected  from  the  consequences  which  might  otherwise  follow 
from  the  action  of  a  court  of  inquiry  in  requiring  him  to  answer  in- 
criminating questions— a  right  which  the  court  of  inquiry  possesses 
to  the  same  extent  as  courts-martial  in  the  cases  noted  in  Court- 
Martial  Order  No.  29,  1914,  pages  10-15.  But  if  the  accused  testified 
voluntarily  before  the  court  of  inquiry  answers  given  by  him  within 
the  scope  of  legitimate  'cross-examination,  although  under  compul- 
sion, are  admissible  in  evidence  against  him  at  his  trial.  (Powers  v. 
United  States,  223  U.  S.,  303,  314.)  If  the  accused  was  improperly 
required  to  testify  as  a  witness  before  a  court  of  inquiry,  in  disregard 
of  the  act  of  March  16,  1878  (20  Stat.  30,  quoted  below),  the  testi- 
mony so  given  can  not  be  used  against  him  at  his  trial. 

11  (g)  Where  a  witness  before  the  court-martial  has  made  prior  incon- 
sistent statements  before  a  court  of  inquiry,  the  proceedings  of  the 
court  of  inquiry  may  be  introduced  in  evidence  for  the  purpose  of 
impeaching  the  testimony  of  such  witness,  subject  to  the  general 


9 

rules  of  evidence  requiring  that  a  proper  foundation  be  laid  before 
evidence  may  be  introduced  to  impeach  the  testimony  of  a  witness 
by  showing  prior  inconsistent  statements.  (Naval  Dig.,  1916,  p. 
132,  sec.  19;  p.  284,  sec.  10.) 

"  (h)  Where  the  accused  is  charged  with  perjury  or  false  swearing 
and  it  is  necessary,  in  order  to  sustain  such  charge,  to  prove  what 
was  said  by  the  accused  as  a  witness  before  a  previous  court  of 
inquiry,  the  proceedings  of  such  court  may  be  introduced  in  evi- 
dence against  him  for  this  purpose.  (C.  M.  O.  51,  1914,  pp.  5-6.) 

11  (i)  Ihe  proceedings  of  the  court  of  inquiry  may  be  used  for  the 
purpose  of  refreshing  the  memory  of  a  witness  before  a  court-martial 
in  accordance  with  general  rules  of  evidence.  (Naval  Dig.,  1916,  p. 
132,  sec.  20  (3).)  Any  witness  testifying  before  a  court-martial  may, 
in  the  discretion  of  the  court,  be  permitted  to  refresh  his  memory 
from  the  record  of  the  testimony  given  by  him  before  a  court  of 
inquiry.  (40  Cyc.,  2456,  2457,  2466.)  If  the  witness,  after  examin- 
ing the  record,  testifies  from  his  own  independent  recollection  of  the 
facts,  the  record  itself  can  not  be  introduced  in  evidence  or  read  to 
the  court,  but  if  the  witness  has  no  independent  recollection  but 
testifies  merely  from  his  knowledge  or  belief  in  the  accuracy  of  the 
record,  it  becomes  a  part  of  his  testimony,  just  as  if  without  it  the 
witness  had  orally  repeated  the  words  from  memory,  and  may  there- 
fore be  read  aloud  by  him  and  shown  to  the  court,  or  otherwise  put 
in  evidence.  (40  Cyc.,  2467;  1  Gieenleaf,  16th  ed.,  sec.  439.)" 

Page  175.  Insert  new  section  as  follows: 

"198  (b).  Board  of  investigation  proceedings  as  evidence  before 
courts  of  inquiry  and  courts-martial. — Article  60,  A.  G.  N.,  has  no 
application  to  the  proceedings  of  boards  of  investigation.  Accord- 
ingly, testimony  of  witnesses  before  such  boards  may  be  used  in  evi- 
dence before  courts  of  inquiry  or  courts-martial,  where  such  action 
is  permitted  by  general  rules  of  evidence. 

"If  the  testimony  before  the  board  of  investigation  was  not  given 
under  oath,  such  testimony  should  not  be  received  in  evidence  by  a 
court  of  inquiry  or  a  court-martial,  except  in  the  cases  noted  in 
paragraphs  (f),  (g),  (h),  and  (i)  of  section  198  (a). 

"If  the  testimony  before  the  board  of  investigation  was  given 
under  oath,  it  may  be  received  in  evidence  in  all  of  the  cases  noted 
above  under  ' admissibility  independently  of  article  60,  A.  G.  N.' 
(Pars,  (d)  to  (i),  inclusive,  of  sec.  198  (a).)  Also,  if  the  accused 
was  afforded  opportunity  to  cross-examina  the  witnesses  before 
the  board  of  investigation,  either  in  person  £>r  by  counsel,  their 

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10 

testimony  may  be  received  against  him  before  a  subsequent  court- 
martial  or  court  of  inquiry  in  certain  additional  cases,  viz, 
where  the  witnesses  have  since  died  (Mattox  v.  U.  S.,  156  U.  S., 
237;  U.  S.  v.  Macomb,  26  Fed.  Cas.  No.  15702;  U.  S.  v.  White,  28 
Fed.  Cas.  No.  16679;  U.  S.  v.  Wood,  28  Fed.  Cas.  No.  16756),  or 
where  the  witnesses  are  absent  by  the  procurement  of  the  accused, 
'or  when  enough  has  been  proved  to  cast  upon  him  the  burden  of 
showing,  and  he,  having  full  opportunity  therefor,  fails  to  show, 
that  he  has  not  been  instrumental  in  concealing  them  or  in  keeping 
them  away'  (Reynolds  v.  U.  S.,  98  U.  S.,  145);  but  such  testimony" 
can  not  be  so  received  in  evidence  where  the  witnesses  are  absent 
otherwise  than  through  the  connivance  or  by  the  procurement  of  the 
accused,  even  though  they  are  beyond  the  jurisdiction  of  the  court. 
(U.  S.  v.  Angell,  11  Fed. 'Rep.,  34;  Motes  v.  U.  S.,  178  U.  S.,  458; 
State  v.  Wing  (Ohio),  64  N.  E.,  514,  followed;  State  v.  Huffman 
(Ohio),  99  N.  E.,  295.) 

"Where  it  is  decided  by  the  court  to  receive  in  evidence  the  testi- 
mony of  a  witness  before  a  board  of  investigation,  the  procedure  to 
be  followed  should  be  the  same  as  that  indicated  above  as  to  the 
'method  of  introducing  court  of  inquiry  proceedings  in  evidence.' 
(See  People  v.  Qualey,  210  N.  Y.,  202;  104  N.  E.,  138;  39  Ann.  Cas., 
1108,  1111;  16  Cyc.,  1106-1110;  2  Bishop's  New  Criminal  Procedure, 
sec.  1199.)" 


Page  175.  Insert  new  section  as  follows: 

"198  (c).  Board  of  inquest  proceedings  as  evidence  before  courts  at 
inquiry  and  courts-martial. — The  proceedings  of  boards  of  inquest 
may  be  used  in  evidence  before  courts  of  inquiry  and  courts-martial 
under  the  same  circumstances  as  are  set  forth  in  section  198  (b)  with 
reference  to  the  use  of  testimony  before  boards  of  investigation  not 
given  under  oath.  If,  in  the  future,  boards  of  inquest  should  be 
authorized  to  administer  oaths  to  witnesses,  the  subsequent  use  of 
testimony  so  given  under  oath  would  be  governed  by  the  same  prin- 
ciples as  those  stated  in  section  198  (b)  with  reference  to  the  use 
of  testimony  before  boards  of  investigation  given  under  oath." 


11 

Page  178.  Immediately  before  section  211  insert  new  section,  as 
follows : 

"210  (a).  Weight  of  court  of  inquiry  proceedings  as  evidence.— 
The  weight  to  be  attached  by  the  court-martial  to  proceedings  of  a 
court  of  inquiry  which  have  been  received  in  evidence  is  a  matter  for 
determination  by  the  court,  the  same  as  in  the  case  of  any  other 
evidence.  In  this  connection,  however,  the  following  is  quoted  from 
the  case  of  Mullan  v.  United  States  (42  Ct.  Cls.,  157,  176;  affirmed 
212  U.S.,  516,  520): 

"  'The  evidence  adduced  before  a  board  of  inquiry  is  surrounded 
by  all  the  solemnities  of  evidence  taken  in  a  court  of  record  or  before 
a  court-martial.  The  accused  is  personally  present  and  represented 
by  counsel.  The  right  of  cross-examination  prevails  and  every  legal 
inhibition  as  to  its  competency  or  relevancy  can  be  raised  at  the 
hearing.  While  it  is  a  court  of  inferior  jurisdiction  and  its  findings 
usually  advisory,  its  proceedings  are  not  in  any  wise  summary.  The 
evidence  adduced  and  preserved  before  courts  of  inquiry  is  superior 
in  every  respect  to  depositions.  An  accused  thus  arraigned  can  not 
plead  ignorance  of  the  testimony  against  him  or  hope  by  subsequent 
examination  of  the  same  witnesses,  in  the  same  cause,  between  the 
same  parties,  to  materially  change  their  testimony.'" 

Page  190.  After  section  253  add  a  new  section  as  follows: 
'253  (a).  The  judge  advocate  (counsel)  should  before  trial 
carefully  explain  to  the  accused  that  he  may,  besides  introducing 
witnesses  in  his  behalf,  either  (1)  take  the  stand  and  testify  under 
oath  or  (2)  make  a  statement  not  under  oath;  that  should  he  take 
the  stand,  he  may  be  subjected  to  a  rigorous  cross-examination  as 
set  forth  in  section  161;  and  that  should  he  not  under  oath  make  a 
statement  which  contains  averments  of  material  facts,  such  aver- 
ments cannot  be  considered  as  evidence  or  accorded  evidentiary 
weight  by  the  court.  (Sec.  311.)  In  advising  the  accused  as  to 
his  right  to  take  the  stand,  the  judge  advocate  should  carefully  re- 
frain from  influencing  the  accused  in  this  respect  except  as  required 
by  section  255. 

Where  the  accused  has  made  a  statement  to  the  court  not  under 
oath,  the  judge  advocate  (if  there  be  no  counsel)  will,  upon  the  com- 
pletion of  such  statement,  inform  the  court  that  the  provisions  of 
this  section  have  been  complied  with." 

Page  192.  After  section  265  add 
"  (See  sec.  253  (a).  )" 


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Page  208.  Section  340,  immediately  after  heading,  insert  the  follow- 
ing paragraphs: 

"  Convening  and  reviewing  authorities  of  general  courts-martial, 
in  acting  upon  sentences  involving  loss  of  pay,  will  give  careful  con- 
sideration to  the  effect  of  Alnav  message  94  as  modified  by  Alnav 
message  22  of  7  February,  1918,  and  by  such  other  instructions  as 
may  be  hereafter  issued." 

"For  the  information  of  the  Department,  convening  authorities, 
when  acting  on  all  sentences  of  general  courts-martial  involving  loss 
of  pay,  will  attach  to  the  record  a  memorandum  statement  of  the 
amounts  of  compulsory  allotment  and  Government  insurance  pre- 
mium that  are  being  checked  against  the  pay  accounts  of  the  accused, 
as  \.  ell  as  the  monthly  rate  of  pay  when  same  is  not  included  in  the 
record  of  proceedings." 

Page  209.  Section  348,  at  end  of  section,  add  the  following:  "  (See 
sec.  340.)" 

Page  215.  Line  8  from  top  of  page,  change  " exemplified"  to 
"certified". 

Page  236.  After  section  429,  add: 

"429  (a).  The  recorder  shah1  then  administer  the  following  oaths 
to  such  of  the  following  named  as  are  employed :  To  the  stenographer 
(clerk),  '  You,  A.  B.,  swear  (or  affirm)  faithfully  to  perform  the  duty 
of  stenographer  (clerk)  in  aiding  the  recorder  to  take  and  record  the 
proceedings  of  the  court,  either  in  shorthand  or  ordinary  manu- 
script.' 

"To  the  interpreter,  'You,  A.  B.,  swear  (or  affirm)  faithfully  and 
truly  to  interpret  or  translate  in  all  cases  in  which  you  shall  be  required 
so  to  do  between  the  United  States  and  the  accused.'  ' 

Page  238.  Section  442,  add  the  following  paragraphs: 
"Convening  and  reviewing  authorities  of  summary  courts-martial, 
in  acting  upon  sentences  involving  loss  of  pay,  will  give  careful 
consideration  to  the  effect  of  Alnav  message  94  as  modified  by  Alnav 
message  22  of  7  February,  1918,  and  by  such  other  instructions  as 
may  be  hereafter  issued." 

"For  the  information  of  the  Department,  convening  authorities, 
when  acting  on  all  sentences  of  summary  courts-martial  involving 
loss  of  pay,  will  attach  to  the  record  a  memorandum  statement  of 
the  amounts  of  compulsory  allotment  and  Government  insurance 
premium  that  are  being  checked  against  the  pay  accounts  of  the 
accused,  as  well  as  the  monthly  rate  of  pay  when  same  is  not  included 
in  the  record  of  proceedings." 


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Page  258.  In  fourth  line  from  top  of  page  substitute  a  comma  for 
the  word  "and".  After  the  word  "thereto"  change  the  period  to  a 
comma,  and  add  "and  to  make  such  recommendations  as  may  be 
deemed  appropriate." 

Page  263.  Section  535,  make  heading  read  " Findings,  opinion,  and 
recommendation,  if  required." 

Page  264.  Section  535,  make  heading  read  "Opinion  and  recom- 
mendation of  court  not  to  be  disclosed."  After  the  word  "opinion" 
in  the  third  line  of  the  same  section,  add  the  words  "or  recommenda- 
tion ". 


Page  264.  Section  536,  make  heading  read  "Finding,  opinion,  and 
recommendation  may  be  typewritten."  In  the  same  section,  make 
section  (after  heading)  read  as  follows:  "The  finding,  opinion,  and 
recommendation  of  a  court  of  inquiry  need  not  be  in  the  handwriting 
of  the  judge  advocate,  but  may  be  typewritten." 


Page  264.  Section  537,  in  the  second  line  after  the  part  of  a  word 
ings"  substitute  a  comma  for  the  word  "or"  and  after  the  word 
opinion"  add  the  words  "or  recommendations". 


Page  280.  Last  line  after  the  word  "board."  insert:  "The  partial 
copy  covering  material  shall  be  forwarded  as  provided  in  section  541." 

Page  296.  Section  617,  in  first  and  second  lines  (heading)  strike 
out  the  words  "lower  grades  of".  In  the  third  line  strike  out  the 
words  "the  lower  grades  of." 


15 

Page  296.  Section  617,  strike  out  the  entire  second  paragraph  and 
substitute  in  place  thereof  the  following: 

' '  Board  for  examination  of  candidates  for  appointments  as  assistant 
paymaster,  chief  pay  clerk,  pay  cleric,  and  acting  pay  clerk. — Section  1379, 
Revised  Statutes,  requires  that  no  candidate  shall  be  appointed  as 
assistant  paymaster  'until  his  physical,  mental,  and  moral  qualifica- 
tions have  been  examined  and  approved  by  a  board  of  pay  officers 
appointed  by  the  Secretary  of  the  Navy,  and  according  to  such  regu- 
lations as  he  may  prescribe.'  The  Act  of  March  3,  1915,  provides: 
'That  no  person  shall  be  appointed  a  chief  pay  clerk,  pay  clerk,  or 
acting  pay  clerk  under  any  provisions  contained  in  this  Act  until  his 
physical,  mental,  moral,  and  professional  qualifications  have  been 
satisfactorily  established  by  examination  before  a  board  of  examining 
officers  appointed  by  the  Secretary  of  the  Navy,  from  officers  of  the 
Pay  Corps  when  practicable  and  according  to  such  regulations  as  he 
may  prescribe:'.  Although  by  statute  the  determination  of  the 
physical,  as  well  as  the  mental  and  moral,  qualifications  of  the  can- 
didate is  left  to  the  board  of  pay  officers,  the  physical  examination  of 
such  candidate  will  be  conducted  by  a  board  of  medical  examiners 
who  shall  report  the  result  thereof  to  the  examining  board  of  pay 
officers,  certifying  as  to  the  physical  qualifications  of  the  candidate, 
and  such  report  shall  form  part  of  the  record  of  the  latter  board." 


Page  297.  Section  625,  in  the  fourth  line,  after  the  word  "only." 
insert  the  sentence,  "  Special  authority  of  the  Navy  Department  will 
be  obtained  in  each  case." 


Page  300.  Section  645.  Add  the  following  sentence:  "And  the 
record  must  further  state  whether  or  not  the  moral  disqualification  of 
the  candidate  is  the  result  of  his  own  misconduct." 


Page  309.  Insert  as  section  673  (a)  : 

"673  (a).  In  case  of  severe  illness,  operation,  or  chronic  disease  or 
disability. — In  every  case  where  the  medical,  or  health,  record  in 
grade  of  a  candidate  for  promotion  contains  entry  of  severe  illness, 
operation,  or  chronic  disease  or  disability,  the  board  shall  state 
whether  restoration  to  health  has  been  complete.  If  restoration  to 
health  has  not  been  complete,  if  deleterious  after  effects  of  the  illness 
or  operation  exist,  if  the  disease  remains  latent,  or  if  the  disability 
continues,  the  board  shall  give  the  particulars  thereof,  and  state 
whether  the  condition  is  permanent,  and  how  and  in  what  degree  it 
disqualifies,  if  at  all." 


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Page  309.  Section  674,  strike  out  everything  following  the  refer- 
ence "(36  Stat.,  1267)"  and  substitute  therefor  the  words,  "In  case 
a  candidate  for  promotion  is  found  incapacitated  for  service  the  board 
shall  further  find  whether  or  not  the  physical  disability  was  contracted 
in  the  line  of  duty.  (See  sec.  694.)" 

Page  309.  Section  676,  in  the  third  line,  strike  out  the  word  "But"; 
change  "in"  to  "In";  and  add  the  following  sentence  to  the  section: 
"  In  the  case  of  medical  officers  of  a  marine  examining  board  convened 
as  a  board  of  medical  examiners,  the  board  shall  transmit  their  report 
to  the  marine  examining  board.  (See  sees.  744,  745.)" 

Page  316.  At  the  end  of  section  692,  insert  "  (See  sec.  697.)" 

Page  316.  Section  694,  in  the  ninth  and  tenth  lines  of  section, 
strike  out  the  words  "by  reason  of  physical  disabil;ty  contracted  in 
the  line  of  duty  (see  sec.  674),  and  such  finding  has  been  approved,". 

In  the  thirteenth  line  of  same  section  insert  a  period  in  place  of 
the  semicolon,  and  strike  out  all  that  follows,  beginning  with  the 
words,  "and  the  words  line  oj  duty — ." 

Page  316.  Insert  as  section  694  (a): 

"  694  (a).  Retirement  of  temporary  officers, — The  act  of  May  22, 
1917  (40  Stat.  84),  provides  as  follows:  'Sec.  9.  That  any  officer  of 
the  permanent  Navy  or  Marine  Corps,  temporarily  advanced  in  grade 
or  rank  in  accordance  with  the  provisions  of  this  Act,  who  shall  be 
retired  from  active  service  under  his  permanent  commission  while 
holding  such  temporary  rank,  except  for  physical  disability  incurred 
in  line  of  duty,  shall  be  placed  on  the  retired  list  with  the  grade  or 
rank  to  which  his  position  in  the  permanent  Navy  or  Marine  Corps 
at  the  date  of  his  retirement  would  entitle  him,  and  any  person 
originally  appointed  temporarily,  as  provided  in  this  Act,  shall  not 
be  entitled  to  any  rights  of  retirement,  except  for  physical  disability 
incurred  in  line  of  duty.'  Accordingly,  when  a  temporary  officer  is 
examined  by  a  retiring  board,  the  board  in  its  finding  shall  state  specif- 
ically whether  or  not  the  physical  disability  was  incurred  in  line  oj 
duty;  and,  if  incurred  in  line  of  duty,  whether  or  not  it  was  so  incurred 
prior  or  subsequent  to  his  temporary  advancement  or  temporary 
appointment,  as  the  case  may  be.  The  officer  under  examination  will 
be  informed  of  the  finding  and  given  an  opportunity  to  be  heard." 


17       • 

Page  317.  Section  697,  add  the  following  paragraph: 
"When  a  retiring  board  finds  an  officer  incapacitated  for  service, 
from  a  disability  not  received  in  line  of  duty,  it  must  specifically 
state  in  the  record  as  to  whether  or  not  such  disability  was  the  result 
of  his  own  misconduct." 


Page  323.  Section  713,  in  the  fourth  line,  strike  out  the  words 
"to  the  full  board." 


Page  342.  Below  Deference  number  "218",  "  Far.  — ,"  insert  the 
following:  "Letter  to  commanding  officer, ." 

Page  345.  First  line,  at  top  of  page,  reading  "  Far.— In  case 
*  *  *,"  change  to  read  "  Far.  /.—In  case  *  *  *." 

Page  345.  Immediately  above  reference  numbers  "242  to  247", 
insert  : 

Var.  2 . — (In  case  of  promotion  of  member  or  judge  advocate  since  precept  was 
issued.) 

44  The  judge  advocate  read  a  communication,  copy  appended,  marked  ' ,' 

from  the  Bureau  of  Navigation,  Navy  Department,  addressed  to  Lieutenant  Com- 
mander J K.  L ,  U.  S.  Navy,  transmitting  to  him  his  commission  as  a 

lieutenant  commander  in  the  Navy. 


Page  349.  First  line  below  reference  numbers  "  141;  142  "  change 
line  to  read:  "1.  Q.  State  your  name,  rate  (rank),  and  present 
station." 

Page  350.  Third  line  from  bottom  of  page,  remove  parentheses 
from  words  "was  duly  warned"  and  insert  comma  after  word 
"testimony". 

Page  351.  Far.  2,  third  line,  after  word  "correct,"  insert  words 
",was  duly  warned". 

Page  351.  Far.  3,  third  line,  after  word  "testimony"  insert  words 
"wras  duly  warned". 

Page  355.  Above  reference  numbers  "  138;  161  "  insert: 

"The  judge  advocate  (when  there  is  no  counsel)  stated  to  the  court 

that  the  substance  of  section  253  (a)  had  been  carefully  explained 

to  the  accused." 


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Page  356.  In  the  third  line  from  top  of  page,  change  the  question 
"Q.  As  whom  do  you  recognize  the  accused?"  to  "Q.  If  you  recog- 
nize the  accused,  state  as  whom." 


Page  357.  Fifth  line,  above  reference  number  "173",  after  word 
"testimony"  strike  out  the  words  "and  was"  and  insert  therefor 
the  following:  ",  was  duly  warned  and". 

Page  357.  Sixth  line  from  bottom  of  page.  After  word  "testi- 
mony," insert  words  "was  duly  warned". 


Page  359.  After  Var.  2,  in  middle  of  page,  insert  a  new  variation 
as  follows: 

"'Vur.  2  (a). — The  accused  made  an  oral  statement  as  follows: 

"The  judge  advocate  (when  there  is  no  counsel)  stated  to  the  court  that  the  sub- 
stance of  section  253  (a),  Naval  Courts  and  Boards,  had  been  carefully  explained 
to  the  accused." 


Page  359.  Above  reference  numbers  "  313  to  316  "  insert: 
"  Var.  S. — The  judge  advocate  submitted  the  case  to  the  court  without  remark." 


Page   360.  Sixth  and  seventh  lines,  strike  out  parentheses  and 
words  included  therein  and  comma  thereafter. 


Page  367.  After  Var.  8  insert  additional  variations,  as  follows: 
Var.  9. — The  proceedings,  findings,  and  sentence  in  the  foregoing  case  of  A.  B. 

,  seaman,  U.  S.  Navy,  are  approved,  and  the  naval  prison  at  the  navy  yard, 

, ,  is  designated  as  the  place  for  the  execution  of  so  much  of  the  sentence 


as  relates  to  confinement. 

"The  foregoing  sentence  is  mitigated  in  accordance  with  articles  114  to  122,  in- 
clusive, of  the  Manual  for  the  Government  of  U.  S.  Naval  Prisons. 

"  Var.  10. — (This  can  not  apply  in  cases  of  men  convicted  of  desertion  in  time  of 
war.} 

"The  proceedings,  findings,  and  sentence  in  the  foregoing  case  of  A.  B.  C , 

seaman,  U.  S.  Navy,  are  approved,  but  that- portion  of  the  sentence  which  involves 

confinement  is  reduced  to months,  all  the  other  accessories  of  said  sentence 

except  loss  of  pay  are  remitted,  and  said  loss  of  pay  is  reduced  to dollars  and 

-  cents  ($  .  ),  (and  as  thus  reduced  is  remitted  subject  to  the  conditions 
prescribed  in  1-4893,  Naval  Instructions,  1913).  The  dishonorable  discharge  is  re- 
mitted on  condition  that  C maintain  a  record  satisfactory  to  his  commanding 

officer  during  said  confinement  (during  a  period  of ),  otherwise  he  is  to  be  dis- 
honorably discharged  at  the  discretion  of  his  commanding  ofEcer  at  any  time  during 
said  period. 

"The  U.  S.  S. is  designated  as  the  place  for  the  execution  of  so  much  of  the 

sentence  as  relates  to  confinement." 


19 
Page  367.  For  reference  number  "  384  "  substitute  "  340;  384  ". 

Page  369.  Below  reference  number  "270"  make  the  direction  read 
"  To :  The  Judge  Advocate, general  court-martial, navy  yard,  —  -". 
Make  the  subject  summary  read  " Subject:  Authorizing  employment 
of  a  stenographer  for  general  court-martial,  in  the  case  of  -  — ." 

Page  370.  In  paragraph  3,  at  top  of  page,  strike  out  last  sentence. 
Change  the  number  of  paragraph  "4"  to  "5"  and  as  paragraph 
"4"  insert  the  following: 

"4.  You  will  upon  completion  of  the  record  require  the  bills  of 
the  stenographer  to  be  submitted  to  you  in  duplicate,  anil,  after 
certifying  to  their  correctness,  will  forward  them,  together  with  a 
certified  copy  of  this  letter,  and  a  certified  copy  of  your  agreement 
with  the  stenographer,  to  the  disbursing  officer  of  the  navy  yard  or 
naval  district  in  which  the  trial  is  held.  Such  disbursing  officer  will 
prepare  the  necessary  public  bills  and  pay  the  account  upon  receiving 
the  proper  signatures." 


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20 

Page  389.  Strike  out  all  down  to  reference  numbers  "  82  to  92; 
454  "  and  substitute  therefor  the  following:  "As  a  cover  for  tho 
record,  use  uniform  cover  sheet  N.  J.  A.  109."  (Miniature  given 
below.) 

N.  J.  A.  109. 

RECORD  OF  PROCEEDINGS 

OF   A 

SUMMARY  COURT-MARTIAL. 

No  remarks  nor  stamps  of  any  kind  to  be  placed  below,  except  as  indicated. 
To  insure  uniformity,  forms  furnished  by  the  Judge  Advocate  General  will  be  used 
exclusively. 


SUMMARY  COURT-MARTIAL. 


(Full  name,  surname  first.) 


(Rate  or  rank.) 


(Ship  or  station  where  tried.) 


(Location.) 


AOL  from', 
A  WOLfrom; 

MJUS.  lang 
Assault 

Asleep  on  duty 
Breaking  arrest 
Dest.  property 
Dtsob  law  ord 
Dlsresp.  to  S.  0, 
Drunkenness 
Falsehood 
Gambling 


(Date  of  trial.) 

to: 
to: 


Liquor  In  pos 

Missing  ship 

Neglect  of  duty 

Obs.  or  prof  language 

Resisting  arrest 

Smug 

Threatg.  language 

Theft 

Unlawful  pos.  property 


BCD 

LP$ 
Conf. 
SC,  B&W 
EPD 
Dep.  lib. 


days 

days. 

days. 

ds, 


Prev.  Courts 


Prev.  serv: 
Reduced  to 


SCM 
DC 

GCM 


BCD  remitted 

LP  remitted 

LP  reduced  to  $ 

Probation, 

LP  remitted,  1-4893 

Reduction  remtd. 


Conf.  red.  to  ds 

Conf,  remitted 

EPD  remltd 

mos.  G.  0.     110 

Plea.  G.,  N.  G. 


Appd.  by  C.  A. 
Acquitted 
Revwd.  by. 


ISC.  SOP 

Disapproved 
Date; 


21 

Page  389.  Immediately  above  reference  numbers  "  404  to  409  " 
insert  the  following: 

"  Var.  0.  S.  S. , 

Hampton  Roads,  Fa.,  —  July,  19 — . 
"From:  Commanding  Officer,  Provisional  Brigade,  embarked  upon  and  not  a  part  of 

the  authorized  complement  of  the  U.  S.  S. . 

''To:  First  Lieutenant ,  U.  S.  Marine  Corps. 

"Subject:  Convening  summary  court-martial. 

"1.  A  summary  court-martial  is  hereby  ordered  to  convene  on  board  this  vessel 
on  Friday,  —  July,  19—,  or  as 'soon  thereafter  as  practicable,  for  the  trial  of  such 
persons  as  may  be  legally  brought  before  it. 

"2.  The  court  will  be  constituted  as  follows: 

"First  Lieutenant  -  — ,  U.  S.  Marine  Corps;  First  Lieutenant  

,  U.  S.  Marine  Corps;  and  Second  Lieutenant  -  — ,  U.  S.  Marine 

Corps,  members;  and  Second  Lieutenant ,  U.  S.  Marine  Corps,  recorder." 


Page  390.  Immediately  above  the  line  reading  "The  accused 
entered  and  stated  that  he  did  not  wish  counsel"  insert  "The 
recorder  introduced  -  — ,  as  stenographer  (clerk)  (inter- 

preter), stating  the  authority  whereby  he  was  appointed  as  such. 

"  425  " 

Page  390.  Above  reference  number  "  409  "  add: 

"  Var.  3. — (In  case  of  promotion  of  member  or  recorder  since  precept  was  issued). 

"The  recorder  read  a  communication,  copy  appended,  marked  ' ',  from  the 

Bureau  of  Navigation,  Navy  Department,  addressed  to  Lieutenant  Commander 
3 —  —  K.  L —  — ,  U.  S.  Navy,  transmitting  to  him  his  commission  as  a  lieutenant 
commander  in  the  Navy." 

Page  390.  Change  line  above  reference  numbers  "  428  to  431  "  to 
read  "Each  member,  the  recorder  and  stenographer  (clerk)  (inter- 
preter) were  duly  sworn." 

Page  393.  In  the  fourth  line,  below  reference  numbers  "175  to 
177;  140",  after  the  word  "rank"  insert  "  (rate)  ". 

Page  393.  In  the  first  line,  below  reference  number  "  143  "  after 
the  word  "rank"  insert  "  (rate)  ". 


Page  393,  In  the  third  line,  above  reference  number  "  142  ", 
change  the  question  "Q.  As  whom  do  you  recognize  the  accused?" 
to  "Q.  If  you  recognize  the  accused,  state  as  whom." 


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Page  393.  In  the  seventh  line,  below  reference  numbers  "  175  to 
177;  140  ",  change  the  question  "Q.  As  whom  do  you  recognize  the 
•accused?"  to  "Q.  If  you  recognize  the  accused,  state  as  whom." 

Page  394.  Above  reference  number  "  138  "  insert: 

"The  judge  advocate  (when  there  is  no  counsel)  stated  to  the  court 

that  the  substance  of  section  253  (a)  had  been  carefully  explained  to 

the  accused." 


Page  394.  At  the  end  of  the  accused's  testimony,  the  following 
should  be  added: 

"The  witness  verified  his  testimony,  and  then  resumed  his  status 
as  accused." 

Page  394.  In  the  fourth  line  from  bottom  of  page  change  the  ques- 
tion "Q.  As  whom  do  you  recognize  the  accused?"  to  "Q.  If  you 
recognize  the  accused,  state  as  whom." 

Page  394.  In  the  sixth  line  from  bottom  of  page,  make  line  read 
"1.  Q.  State  your  name,  rate  (rank),  and  present  station." 

Page  395.  Above  reference  numbers  "  313  to  315  "  and  "  316  " 
insert  (2  inserts) : 

"The  judge'advocate  (when  there  is  no  counsel)  stated  to  the  court 
that  the  substance  of  section  253 (a),  Naval  Courts  and  Boards,  had 
been  carefully  explained  to  the  accused." 

Page  395.  In  the  first  line,  below  reference  number  "  316  ",  before 
the  word  "and"  insert  "all  parties  to  the  trial  entered,". 

Page  397.  For  reference  numbers  "458;  459"  substitute  "442; 
458;  459". 

Page  398.  For  reference  number  "  459  "  substitute  "  442;  459  ". 

Page  399.  Immediately  above  reference  numbers  "  459  to  462  " 
insert  the  following: 

7 

Colonel,  U.  8.  Marine  Corps, 

Commanding  Provisional  Brigade. 

"Embarked  upon  and  not  a  part  of  authorized  complement  of 
U.  S.  S. ." 


23 

Page  405.  In  first  line  of  Var.   above  reference  numbers   "491; 
464  "  after  the  word  "in"  insert  the  words  "accordance  with". 


Page  416.  Below  reference  number  "  527  "  change  heading  "FACTS." 
to  "FINDING  OF  FACTS." 


Page  416.  Below  reference  numbers  "534;  536"  strike  out  matter 
under  heading  "OPINION."  and  substitute  therefor: 
11  (Here  state  opinion  as  required.) 


"(If  further  proceedings  are  recommended  against  any  person,  state 
what  proceedings,  and  grounds  therefor.)" 

Page  417.  Below  first  form  of  "  Precept  for  Court  of  Inquiry." 
change  paragraph  No.  "4"  to  "5"  and  paragraph  No.  "5"  to  "6". 
Insert  as  paragraph  "4"  the  f oh1  owing: 

"4.  The  attention  of  the  court  is  particularly  invited 'to  section 
511,  Naval  Courts  and  Boards." 

Page  428.  Line  6  from  top  of  page,  immediately  after  the  words 
"Secretary  of  the  Navy"  insert  "  (Judge  Advocate  General)". 

Page  433.  In  second  line,  below  reference  number  "608",  change 
the  period  after  the  word  ''Navy."  to  a  comma,  and  add  "U.  S.  S. 


Page  439.  In  the  seventh  line  below  the  reference  number  "624", 
after  the  word  "(grades)"  insert  "(or  rank)";  strike  out  the  words 
"to  which  he  is  to  be  promoted",  and  insert  in  place  thereof  the 
words  "for  promotion  to  which  he  is  a  candidate".  The  same  cor- 
rection will  be  made  on  page  440,  in  variation  2,  and  in  variation  3; 
on  page  441,  in  variation  4;  on  page  442,  in  the  fourth  line  of  the 
clause  beginning  "We  hereby  certify  *  *  *";  and  on  page  445, 
in  the  third  and  fourth  lines  of  the  clause  beginning  "We  hereby 
certify  *  *  *". 


. 

.• 


. 


' 


' 

• 

. 
. 


••  .  - 


• 

- 
. 

. 
. 

aea  -sea  ;iea 

....      .  .     .  .  .  /:  .        •  ,    .  .        .      B  :• 


24 

Page  452.  Below  reference  number  "670"  strike  out  variation  1 
and  insert  the  following: 

11  (In  all  cases  of  severe  illness  or  operation  in  grade,  or  rank,  or  of  chronic  disease  or 
disability,  not  considered  by  the  board  sufficient  to  disqualify,  variations  1  or  2  shall  be  used.) 

"  Var.  1.  — . examination  of  the  candidate,  giving  special  attention  to  the 

following  entries  contained  in  his  medical  history,  viz,febrii  continua  simplex,  syphilis, 
tuberculosis  (or,  as  the  case  may  be),  and  is  of  the  opinion  that  his  restoration  to  health 
has  been  complete,  and  found  no  trace  of  any  ailment  or  disability  now  existing. 

"  Var.  2.  — .  is  of  the  opinion  that  his  restoration  to  health  has  not  been  com- 
plete since  he  developed  syphilis  in  1915  (his  operation  for in  1916)  (or,  as  the. 

case  may  be),  and  that  this  disease  remains  latent  (that  the  following  after  effects 

exist )  (or,  as  the  case  may  be),  and  that  this  condition  is  permanent  (temporary). 

The  board  is  of  the  opinion,  however,  that  this  condition  is  not  sufficient  to  disqualify, 
and  found  o  trace  of  any  other  ailment  or  any  disability  now  existing. 


•'  673  (a)" 

In  variation  number  3,  in  the  second  line,  after  the  word  "ailment" 
insert  the  words,  " ,  tuberculosis  (or,  as  the  case  may  be),". 

Change  the  numbers  of  variations  2,  3,  and  4  to  3,  4,  and  5,  re- 
spectively. 

Immediately  below  Var.  4  insert  the  following  new  paragraph: 
"General  physical  condition  of  Lieutenant  H C.  E ,  U.  S.  Navy: 

(Describe  briefly  the  candidate's  condition,  stating  any  particulars  in  which  abnormal).1 

Page  460.  Fifth  line  of  the  clause  beginning  "Medical  Director 
R T.  S "  strike  out  the  word  "(not)". 

Page  461.  First  line  above  reference  number  "684",  insert  the 
word  "was"  between  the  words  "and"  and  "duly".  Below  refer- 
ence number  "692"  strike  out  the  clause  beginning  "The  board, 
having  deliberated  *  *  *"  and  substitute  therefor: 

"The  board,  having  deliberated  on  the  evidence  before  it,  decided 

that  Captain  Q R.  S ,  U*  S.  Navy,  is  incapacitated  for 

active  service  by  reason  of  apoplexy  (or,  as  the  case  may  be),  that 
his  incapacity  is  permanent  and  is  the  result  of  an  incident  of  the 
service. 

"691;  693;  696 

"(But  see  section  694,  694 (a),  and  variation  3,  page  462.)" 


25 

Page  462.  Strike  out  Far.  2  and  substitute  therefor  the  following: 

"  Far.  2. — Captain  S —     —  withdrew. 

"The  board,  having  deliberated  on  the  Evidence  before  it,  and  having  decided  that 
prima  facie  it  appears  that  the  incapacity  of  Captain  Q —  —  R.  S —  — ,  U.  S.  Navy, 
was  not  incurred  in  line  of  duty  (but  is  the  result  of  his  own  misconduct),  he  was 
called  before  the  board,  and  so  informed  by  the  president,  and  given  an  opportunity 
to  be  heard.  [If  the  incapacity  is  the  result  of  his  own  misconduct,  add  'upon  the 
charges  against  him,  as  follows:  (Insert  charges,}'] 

"Captain  S —  —  stated  that  he  did  not  desire  to  question  the  medical  members, 
to  introduce  evidence,  or  to  make  a  statement  (and  had  nothing  to  offer  in  relation 
to  the  charges).  He  was  then  discharged  from  further  attendance. 

"Or,  [Captain  S was  (at  his  own  request)  called  as  a  witness  and  duly  sworn. 

(Testimony  recorded  as  for  defense  in  a  general  court-martial.}] 

"Or,  (Captain  S then  submitted  in  evidence  certain  papers  appended, 

marked  ' —  -'  to  ' '.) 

"Or,  Captain  S —  —  asked  permission  to  introduce  Mr.  J R as  his 

counsel.  The  request  was  granted  and  Mr.  R entered. 

"Or,  Captain  S —  -  requested  the  board  to  summon  the  following  persons  as 
witn asses.  (Insert  names.}  The  request  of  Captain  S —  -  was  granted  and  the 
necessary  summons  issued.  Pending  the  arrival  of  the  witnesses  the  board  adjourned 
until  —  — . 

"The  board  met  March  — ,  19 — ,  pursuant  to  adjournment  of  the instant. 

"Present:     The  entire  board  and  the  officer  under  examination  (and  counsel). 

"Medical  Inspector  C —  -  N —  — ,  U.  S.  Navy,  a  witness  called  by  Captain 
was  duly  sworn. 


"(Testimony  recorded  as  for  defense  in  a  general  court-martial.} 

"The  witness  verified  his  testimony  and  withdrew. 

"Captain  S —     —  had  no  further  witnesses  to  call  and  had  nothing  further  to  offer. 

"The  board  was  then  cleared. 

"The  medical  members  submitted  a  report,  which  was  sworn  to,  read,  and  ap- 
pended, marked  ' '. 

"The  board,  having  deliberated  on  the  evidence  before  it,  decided  that  Captain 

Q R.  S —  — ,  U.  S.  Navy,  is  incapacitated  for  active  service  by  reason  of 

,  that  his  incapacity  is  permanent,  and  is  not  the  result  of  an  incident  of  the 

service  and  is  not  the  result  of  his  own  misconduct. 

"697" 


. 

. 

• 

• 


., 


• 

• 


26 

Pagw  462.  In  the  third  line  of  Var.  3  after  the  comma,  insert  the 
words  "that  his  incapacity  is  permanent  and  was".  Insert  as 
Var.  4: 

"In  all  cases  of  temporary  officers:" 

"  Var.  4. — The  board,  having  deliberated  on  the  evidence  before  it,  decided  that 

Lieutenant  (J.  G.)  (T)  Q R.  S —    — ,  U.  S.  Navy  (chief  boatswain,  U.  S. 

Navy),  is  incapacitated  for  service  by  reason  of  (state  the  physical  disability],  that  his 
incapacity  is  permanent  and  was  incurred  in  line  of  duty  as  the  result  of  an  incident 
of  the  service  subsequent  to  his  appointment  as  a  temporary  ensign  in  the  Navy. 

"694  (a)" 
Insert  as  variation  5: 

"  Var.  5.—  Lieutenant  (J.  G.)  (T)  S —     -  withdrew. 

"The  board,  having  deliberated  on  the  evidence  before  it,  and  having  decided 

that  prima  facie  it  appears  that  the  incapacity  of  Lieutenant  (J.  G.)  (T)  Q R. 

S ,  U.  S.  Navy  (chief  boatswain,  U.  S.  Navy),  was  incurred  in  line  of  duty 

prior  to  his  appointment  as  a  temporary  ensign  in  the  Navy,  he  was  called  before 
the  board  and  so  informed  by  the  president,  and  given  an  opportunity  to  be  heard. 

"  (Then  follow  Var.  2,  except  for  finding,  as  follows:) 

"The  board,  having  deliberated  on  the  evidence  before  it,  decided  that  Lieuten- 
ant (J.  G.)  (T)  Q —  -  R.  S —,  U.  S.  Navy  (chief  boatswain,  U.  S.  Navy),  is 

incapacitated  for  service  by  reason  of  (state  the  physical  disability),  that  his  incapacity 
is  permanent  and  was  incurred  in  line  of  duty  as  the  result  of  an  incident  of  the 
service  prior  to  his  appointment  as  a  temporary  ensign  in  the  Navy." 


Page  471.  First  line,  after  "Far."  insert  the  figure  "1."  Below 
the  reference  number  "718"  insert: 

"  Var.  2. — The  report  of  the  board  of  medical  examiners,  that  the  candidate  is  not 
physically  qualified  to  perform  all  his  duties  af  sea  by  reason  of  the  loss  of  his  left 
leg  at  the  knee  (or,  as  the  cose  may  be),  that  such  disability  was  occasioned  by  a  wound 
received  in  the  line  of  his  duty,  and  that  it  does  not  incapacitate- him  for  other  than 
sea  duties,  was  read  by  the  recorder,  adopted  by  the  full  board,  and  appended, 
marked  ' '.  The  medical  officers  were  excused  from  further  attendance." 


Page  472.  At  bottom  of  page  insert: 

"  Var  2. has  the  mental,  moral,  and  professional  qualifications  and  the 

physical  qualifications  to  perform  all  the  duties  of  the  next  higher  grade  to  which 
he  will  be  eligible,  to  wit,  ,  except  those  at  sea,  and  does,  therefore,  recom- 
mend his  promotion  thereto  in  accordance  with  the  provisions  of  section  1494  of  the 
Revised  Statutes." 


Page  473.  Top  of  page  change  the  number  of  the  variation  from 
(2"  to  "3." 


27 
Page  473.  Below  reference  number  "  734"  insert: 

''REPORT  OF  THE  MEDICAL  MEMBERS  CONVENED  AS  A  BOARD  OF  MEDI- 

CAL EXAMINERS. 


(See  Chapter  XIX  and  sections  744  and 

BOARD  OF  MEDICAL  EXAMINERS, 
MARINE   BARRACKS,   NAVY  YARD, 

Mare  Island,,  Cal.,  August  —  ,  19  —  . 


(Surname..)  (Christian  name.) 

"(Rank.)' 

In  19—. 


Age, .._. 

Years  of  service, 


(This  form  is  intended  as  a  general  guide  only  and  should  in  no  way 
restrict  the  scope  of  the  inquiry,  which  should  be  as  thorough  as  possible.} 

History  of  the  case: 


PRESENT    CONDITION. 

Vision:  Right  eye,   

Left  eye,   

Right  eye  corrected  to by . 

Left  eye  corrected  to by . 

Hearing:  Right  ear,   

Left  ear,   

Pulse:  Rate,   ; 

Quality, 

^Condition  of  arteries,   

Figure  and  general  appearance,   

Weight, pounds;  height, inches. 

Chest  measurement:  At  expiration, inches. 

At  inspiration,  . inches. 

Mobility,   

Bones  and  joints,   

Skin, 

Nervous  system,   

Respiratory  system,   

Veins,   . : 

Varicocele,   

Varicose  veins,   

Digestive  system,  

H  ernia,  — , 

Genito-urinary  system 


• 


28 

Is  he  incapacitated  for  active  service? 

Nature  and  degree  of  disability, 

How  does  it  incapacitate? 

Is  it  permanent? 

Is  the  incapacity  the  result  of  an  incident  of  service? 

"  Each  member  of  the  board  made  a  careful  physical  examination 
of  the  candidate  and  found  no  trace  of  any  ailment  or  disability  now 
existing.' 

"  Var.  1 . — Each  member  of  the  board  made  a  careful  physical  examination  of  the 
candidate,  giving  special  attention  to  the  following  entries  contained  in  his  medical 
history,  viz,  febris  continua  simplex,  minus  punctum,  etc.,  and  found  no  trace  of  any 
ailment  or  disability  now  existing. 

"  Var.  2. — Each  member  of  the  board  made  a  careful  physical  examination  of  the 
candidate  and  found  that  he  is  suffering  from  —  —  contracted  (not)  in  line  of  duty. 

"  Var.  3. — Each  member  of  the  board  made  a  careful  physical  examination  of  the 
candidate  and  found  that  he  has  recovered  from  the  ailment  rioted  in  his  medical 
record  for  the  period  since  January  — ,  19 — \  that  he  has  lost  his  left  leg  at  the  knee; 
that  such  disability  was  occasioned  by  a  wound  received  in  the  line  of  his  duty ;  that 
it  does  not  incapacitate  him  for  other  than  sea  duties  in  the  next  grade  to  which  he 
will  be  eligible,  and  that  there  is  no  other  disability  now  existing. 

"We  hereby  certify  that  First  Lieutenant  X—  -  Y.  Z—  — , 
U.  S.  Marine  Corps;  is  physically  qualified  to  perform  all  his  duties 
at  sea,  and  recommend  him  for  promotion. 

"673 

"  Var.  l.—We  hereby  certify  that  Lieutenant  X Y.  Z ,  U.  S.  Marine 

Corps,  is  incapacitated  for  service  by  reason  of  (state  the  physical  disability]  contracted 
not)  in  the  line  of  duty,  and  he  is  therefore  not  qualified  to  perform  all  his  duties 
at  sea,  and  we  do  not  recommend  him  for  promotion. 

"674;     675 

"  Var.  2. — We  hereby  certify  that  -  -  is  physically  qualified  to  perform  all  his 
duties  except  those  at  sea,  and  recommend  him  for  promotion  in  accordance  with 
the  provisions  of  section  1494  of  the  Revised  Statutes. 

"664 


"  Medical  Inspector,  U.  S.  Navy,  President. 

U 

"Surgeon,  U.  S.  Navy,  Member  and  Recorder." 
Page  473.  In  the  form  of  "Precept"  insert  as  paragraph  5: 

"5.  The  medical  members  of  this  board  will  constitute  a  Board  of  Medical  Examin- 
ers, and  will  render  a  report  as  such  in  tne  <case  of  each  candidate  examined.  The 
report  of  the  Board  of  Medical  Examiners  will  be  attached  to  and  made  part  of  the 
record  of  proceedings  of  the  Marine  Examining  Board  in  each  case." 

Add  to  the  reference  "705"  the  additional  references,  "744;  745". 

Page  474.  Last  two  lines,  strike  out  the  words  "which  shall  also 
be  used  by  examining  boards/'. 

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